UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-K
| x | ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
For the fiscal year ended December 31, 2010
or
| ¨ | TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
For the transition period from to
Commission file number: 1-31383
ENBRIDGE ENERGY MANAGEMENT, L.L.C.
(Exact Name of Registrant as Specified in Its Charter)
| Delaware | 61-1414604 | |
| (State or Other Jurisdiction of Incorporation or Organization) |
(I.R.S. Employer Identification No.) |
1100 Louisiana Street, Suite 3300,
Houston, Texas 77002
(Address of Principal Executive Offices) (Zip Code)
Registrant’s telephone number, including area code
(713) 821-2000
Securities registered pursuant to Section 12(b) of the Act:
| Title of each class | Name of each exchange on which registered | |
| Shares representing limited liability company interests | New York Stock Exchange |
Securities registered pursuant to Section 12(g) of the Act: NONE
Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act. Yes ¨ No x
Indicate by check mark if the registrant is not required to file reports pursuant to Section 13 or Section 15(d) of the Act. Yes ¨ No x
Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Yes x No ¨
Indicate by check mark whether the registrant has submitted electronically and posted on its corporate Web site, if any, every Interactive Data File required to be submitted and posted pursuant to Rule 405 of Regulation S-T (§ 232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit and post such files). Yes ¨ No ¨
Indicate by check mark if disclosure of delinquent filers pursuant to Item 405 of Regulation S-K (§ 229.405) is not contained herein, and will not be contained, to the best of the registrant’s knowledge, in definitive proxy or information statements incorporated by reference in Part III of this Form 10-K or any amendment to this Form 10-K. x
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act. (Check one):
| Large accelerated filer x |
Accelerated filer ¨ | |
| Non-accelerated filer ¨ |
Smaller reporting company ¨ | |
| (Do not check if a smaller reporting company) |
Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Act). Yes ¨ No x
As of June 30, 2010, the aggregate market value of the registrant’s Listed Shares held by non-affiliates of the registrant was $717,004,512 based on the last reported sale price of such Listed Shares on the New York Stock Exchange on that date.
As of February 18, 2011, the registrant has 17,928,170 Listed Shares outstanding.
DOCUMENTS INCORPORATED BY REFERENCE:
Annual Report on Form 10-K of Enbridge Energy Partners, L.P. for the year ended December 31, 2010
This Annual Report on Form 10-K contains forward-looking statements, which are typically identified by words such as “anticipate,” “believe,” “continue,” “estimate,” “expect,” “forecast,” “intend,” “may,” “plan,” “position,” “project,” “strategy,” “target,” “could,” “should” or “will” and similar words or statements, express or implied, suggesting future outcomes or statements regarding an outlook or the negative of those terms. Although we believe that these forward-looking statements are reasonable based on the information available on the dates these statements are made and processes used to prepare the information, these statements are not guarantees of future performance, and we caution you not to place undue reliance on these statements. By their nature, these statements involve a variety of assumptions, unknown risks, uncertainties, and other factors, which may cause actual results, levels of activity and performance to differ materially from those expressed or implied by these statements.
Our forward-looking statements are subject to risks and uncertainties pertaining to operating performance, including but not limited to those risks and uncertainties discussed in this Annual Report on Form 10-K and our other reports filed with the Securities and Exchange Commission. The impact of any one risk, uncertainty or factor on a particular forward-looking statement is not determinable with certainty as these are interdependent and our future course of action depends on the assessment of all information available at the relevant time by those responsible for the management of our operations. Except to the extent required by law, we assume no obligation to publically update or revise any forward-looking statements made herein whether as a result of new information, future events or otherwise. All subsequent forward-looking statements, whether written or oral, attributable to us or persons actions on our behalf are expressly qualified in their entirety by these cautionary statements, as such may be updated in our future filings with the Securities and Exchange Commission. For additional discussion of risks, uncertainties and assumptions, see “Item 1A. Risk Factors” included elsewhere in this Annual Report on Form 10-K. Also see “Information Regarding Forward-looking Statements” and “Item 1.A Risk Factors” included in the Partnership’s Annual Report on Form 10-K for the year ended December 31, 2010, which we refer to as the Partnership’s 10-K, for a discussion of risks to the Partnership that also may affect us.
i
PART I
OVERVIEW
In this report, unless the context requires otherwise, references to “we,” “us,” “our,” the “Company,” or “Enbridge Management” are intended to mean Enbridge Energy Management, L.L.C. Our shares, representing limited liability company interests, which we refer to as our Listed Shares, are traded on the New York Stock Exchange, or NYSE, under the symbol “EEQ.” References to our “shares” in this Annual Report mean, collectively, our Listed Shares and our voting shares.
We are a publicly-traded Delaware limited liability company that was formed on May 14, 2002. We are a limited partner of Enbridge Energy Partners, L.P., which we refer to as the Partnership, through our ownership of i-units, a special class of the Partnership’s limited partner interests. The Partnership’s Class A common units are traded on the NYSE under the symbol “EEP,” which together with the Class B common units we refer to as common units. Under a delegation of control agreement among us, the Partnership and its general partner, Enbridge Energy Company, Inc., referred to as the General Partner, we manage the Partnership’s business and affairs. The General Partner is an indirect, wholly-owned subsidiary of Enbridge Inc., an energy company based in Calgary, Alberta, Canada that we refer to herein as Enbridge.
As of December 31, 2010 and 2009, we owned an approximate 13.7 percent and 13.6 percent limited partnership interest of the Partnership, respectively. At December 31, 2010, the General Partner owned 1.96, or 100 percent, of our voting shares, as well as 3,038,467, or 17.2 percent of our Listed Shares, while the remaining 14,604,242, or 82.8 percent, or our Listed Shares were held by the public. Our performance depends on the operations and management of the Partnership. Accordingly, we incorporate by reference the Partnership’s Annual Report on Form 10-K for the year ended December 31, 2010, that we refer to herein as the Partnership’s 10-K.
On October 17, 2002, we became a limited partner of the Partnership and, pursuant to a delegation of control agreement, assumed the management of the Partnership’s business and affairs. The delegation of control agreement provides that we will not amend or propose to amend the Partnership’s partnership agreement, allow a merger or consolidation involving the Partnership, allow a sale or exchange of all or substantially all of the assets of the Partnership or dissolve or liquidate the Partnership without the approval of the General Partner.
The General Partner remains responsible to the Partnership for actions taken or omitted by us while serving as the delegate of the General Partner as if the General Partner had taken or omitted to take such actions. The General Partner owns all of our voting shares. The General Partner has agreed not to voluntarily withdraw as general partner of the Partnership and has agreed not to transfer its interest as general partner of the Partnership unless the transferee agrees in writing to be bound by the terms and conditions of the delegation of control agreement that apply to the General Partner.
Under its partnership agreement, except for the available cash that the Partnership is required to retain in respect of the i-units, the Partnership distributes all of its available cash to the General Partner and holders of its common units on a quarterly basis. The amount of cash distributed by the Partnership depends on the operations of the Partnership and its subsidiaries and is determined by our board of directors in accordance with the Partnership’s partnership agreement. We do not, however, receive distributions of cash in respect of the i-units we own and do not otherwise have any cash flow attributable to our ownership of the i-units. Instead, when the Partnership makes distributions of cash to the General Partner and holders of its common units, the number of i-units we own increases automatically under the Partnership’s partnership agreement and the amount of available cash that is attributable to the i-units is retained by the Partnership. The amount of this increase is calculated by dividing the amount of the cash distribution paid by the Partnership on each of its common units by
1
the average closing price of one of our Listed Shares on the NYSE as determined for a 10-trading day period ending on the trading day immediately prior to the ex-dividend date for our shares. Concurrently, with the increase in the number of i-units we own, we make distributions on our shares in the form of additional shares, with the result that the number of shares that are then outstanding equal the number of i-units that we own.
We have elected to be treated as a corporation for federal income tax purposes. Therefore, an owner of our shares does not report on its federal income tax return any of our items of income, gain, loss and deduction relating to an investment in us. We are subject to federal income tax on our taxable income; however, the i-units owned by us generally are not entitled to allocations of income, gain, loss or deduction of the Partnership unless there is a liquidation of the Partnership. Therefore, we do not anticipate that we will have material amounts of taxable income resulting from our ownership of the i-units unless we enter into a sale or exchange of the i-units or the Partnership is liquidated.
The Partnership recognizes the delegation of rights and powers to us, and indemnifies and protects us, our officers and our directors to the same extent as it does with respect to the General Partner under the Partnership’s partnership agreement. In addition, the Partnership reimburses us for expenses to the same extent as it does with respect to the General Partner under the Partnership’s partnership agreement and reimburses us for any Texas franchise taxes and any other foreign, state and local taxes not otherwise paid or reimbursed pursuant to a tax indemnification agreement between Enbridge and us.
The delegation of control agreement with the General Partner continues until:
| • | Either the General Partner has withdrawn (whether voluntarily or involuntarily) or has been removed as the general partner of the Partnership; |
| • | All of our shares are owned by the General Partner of the Partnership or its affiliates, and termination of the delegation of control agreement has been approved by us and the General Partner of the Partnership; or |
| • | Termination of the delegation of control agreement has been approved by us, the General Partner, the record holders of a majority of the outstanding Listed Shares (other than the General Partner, the record holder of the voting shares or their respective affiliates) and the record holders of the majority of the voting shares. |
The General Partner is the only general partner of the Partnership. The General Partner retains its general partner interest and shares in the profits, losses and distributions from the Partnership.
If the General Partner’s power and authority as general partner are modified in the partnership agreement of the Partnership, then the power and authority delegated to us will be modified on the same basis. The delegation of control agreement can be amended by all parties to the agreement except for any amendment that, in the sole discretion of our board of directors, would reduce the time for any notice to which owners of our shares are entitled or would materially adversely affect the rights or preferences of the holders of our shares.
EMPLOYEES
We have entered into agreements with the General Partner and several of its affiliates to provide us with the necessary services and support personnel, who act on our behalf as our agents.
AVAILABLE INFORMATION
We file annual, quarterly and other reports and other information with the Securities and Exchange Commission, or SEC, under the Securities Exchange Act of 1934, as amended, referred to as the Exchange Act. You may read and copy any materials that we file with the SEC at the SEC’s Public Reference Room at 100 F
2
Street, NE, Washington, DC 20549. You may obtain additional information about the Public Reference Room by calling the SEC at 1-800-SEC-0330. In addition, the SEC maintains an Internet site at http://www.sec.gov that contains reports, proxy and information statements and other information regarding issuers that file electronically with the SEC, including us.
We also make available free of charge on or through our Internet website at http://www.enbridgemanagement.com, our Annual Report on Form 10-K, Quarterly Reports on Form 10-Q, Current Reports on Form 8-K and other information statements, and if applicable, amendments to those reports filed or furnished pursuant to Section 13(a) of the Exchange Act as soon as reasonably practicable after we electronically file such material with, or furnish it to, the SEC. Information contained on our website is not part of this report.
We encourage you to consider carefully the risk factors described below, in addition to the other information contained in or incorporated by reference into this Annual Report on Form 10-K. Our results of operations, financial condition and cash flows depend on the results of operations, financial condition and cash flows of the Partnership. Consequently, risks and uncertainties affecting the Partnership will directly affect our results of operations, financial condition and cash flows and could cause our actual results to differ from the forward-looking statements herein. Specifically, see “Information Regarding Forward-looking Statements” and “Risk Factors” included in the Partnership’s Annual Report on Form 10-K for the year ended December 31, 2010 and its subsequently filed Quarterly Reports on Form 10-Q and other reports filed with the SEC under the Exchange Act for a discussion of risks to the Partnership that also may affect us. We incorporate by reference into this Annual Report on Form 10-K Item 1A of Part I, “Risk Factors,” of the Partnership’s 10-K.
RISKS RELATED TO OUR BUSINESS
Because our only assets are the i-units issued by the Partnership to us, our results of operations, financial condition and cash flows depend solely on our management and the performance of the Partnership.
We are a limited partner of the Partnership and our only assets are the i-units that the Partnership has issued to us. As a result, our results of operations, financial condition and cash flows depend entirely on the Partnership’s results of operations, financial condition and cash flows. The risks and uncertainties that affect the Partnership, its results of operations, financial condition and cash flows also affect us and the value of the Listed Shares that you own.
The distributions of additional shares that we make to our shareholders depend on the amount of cash that the Partnership distributes to the holders of its Class A and B common units.
When the Partnership makes a cash distribution to the holders of its Class A and B common units, we distribute to each holder of our shares that fraction of a share determined by dividing the amount of the cash distribution paid by the Partnership with respect to each common unit by the average market price of one of our Listed Shares. Therefore, if the Partnership decreases the cash distributions that it pays to the holders of its common units, the value of the distributions of additional shares that we make to our shareholders will decrease as well.
Our board of directors may establish cash reserves at the Partnership that it believes are necessary to fund the Partnership’s future operating and capital expenditures, provide for the proper conduct of its business, comply with applicable laws or agreements to which the Partnership is a party, or provide funds for future distributions to partners. These cash reserves affect the amount of cash available for distribution by the Partnership to the holders of its common units and, consequently, the value of the distributions of additional shares that we make to our shareholders.
3
In addition, the fraction of a share to be issued in each quarterly distribution on our outstanding shares is based on the average closing price of our shares for the 10 consecutive trading days preceding the ex-dividend date for our Listed Shares. Because the market price of our Listed Shares may vary substantially over time, the value of the additional shares that we distribute to our shareholders may vary substantially from the cash that you would have received had you owned common units of the Partnership instead of our Listed Shares.
The Partnership may issue additional common units or other classes of units, and we may issue additional shares, any of which would dilute your ownership interest.
The Partnership’s issuance of additional common units or other classes of units or our issuance of shares, other than our quarterly distributions to you, may have the following effects:
| • | The amount available for distributions on each share may decrease; |
| • | The relative voting power of each previously outstanding share may decrease; and |
| • | The market price of the Listed Shares may decline. |
Additionally, the public sale by the General Partner of a significant portion of the Class B common units that it currently owns could reduce the market price of the Class A common units and, indirectly, the market price of our shares. The Partnership’s partnership agreement allows the General Partner to cause the Partnership to register for public sale any units held by the General Partner or one of its affiliates. A public sale of the Class B common units currently held by the General Partner could absorb some of the trading market demand for the outstanding Class A common units, which indirectly could reduce the market price of our shares. In addition, the General Partner may sell its Class B common units in private transactions at any time, which could have a similar effect on the market for the outstanding Class A common units and, indirectly, the market for our shares.
If we are not fully reimbursed or indemnified for obligations and liabilities we incur in managing the business and affairs of the Partnership, we may be unable to pay those liabilities and the value of our shares could decline.
Under the delegation of control agreement, the General Partner has delegated to us management of the Partnership and its operating subsidiaries. To the extent we incur liabilities or other obligations in connection with our performance under the delegation of control agreement, we are entitled to be reimbursed or indemnified by the Partnership to the same extent as the General Partner under the Partnership’s partnership agreement. In the event the Partnership and the General Partner are either unwilling or unable to reimburse or indemnify us, we likely will be unable to satisfy these liabilities or obligations. Additionally, our right to reimbursement or indemnification is limited under certain circumstances, including if we act in bad faith or if we violate laws, like the United States federal securities laws, for which indemnification may be against public policy.
If in the future we cease to manage the business and affairs of the Partnership, we may be deemed to be an investment company under the Investment Company Act of 1940.
If we cease to manage the Partnership’s business and are deemed to be an investment company under the Investment Company Act of 1940, we would either have to register as an investment company under the Investment Company Act, obtain exemptive relief from the SEC, or modify our organizational structure or our contract rights to fall outside the definition of an investment company. Registering as an investment company could, among other things, materially limit our ability to engage in transactions with our affiliates, including the purchase and sale of certain securities or other property to or from our affiliates, restrict our ability to borrow funds or engage in other transactions involving leverage and require us to add directors who are independent of us or our affiliates.
4
TAX RISKS TO OUR SHAREHOLDERS
If the Partnership were treated as a corporation for United States federal income tax purposes, the value of our shares would be substantially reduced, and the owner of our voting shares would have the right to merge us into the Partnership.
The anticipated benefit of an investment in our shares depends largely on the continued treatment of the Partnership as a partnership for United States federal income tax purposes. Current law requires the Partnership to derive at least 90% of its annual gross income from specific activities to continue to be treated as a partnership for United States federal income tax purposes. The Partnership may not find it possible, regardless of its efforts, to meet this income requirement or may inadvertently fail to meet this income requirement. Current law could change so as to cause the Partnership to be treated as a corporation for United States federal income tax purposes without regard to its sources of income or otherwise subject the Partnership to entity-level taxation.
If the Partnership were to be treated as a corporation for United States federal income tax purposes, it would pay United States federal income tax on its income at the corporate tax rate, which currently is a maximum of 35%, and such treatment also may subject the Partnership to state income taxes at varying rates. Additional taxes imposed on the Partnership as a result of being treated as a corporation could substantially reduce the amount of cash available for distribution to the holders of its common units, which in turn could reduce the value of the i-units we own and the value of your shares. In addition, the automatic increase in the number of i-units that we will own after each quarterly distribution of cash to holders of common units generally would be a taxable distribution to us.
Under the provisions of our limited liability company agreement and the Partnership’s partnership agreement, if the Partnership were to be treated as a corporation for United States federal income tax purposes, the owner of our voting shares has the right to cause us to merge with or into the Partnership or one of its subsidiaries. As a condition to such merger, we must obtain either an opinion of counsel that such merger should be currently non-taxable to holders of our shares or a ruling from the United States Internal Revenue Service, or IRS, that such merger will be currently non-taxable to holders of our shares, except as to the consideration received for fractional shares or as to the termination of any rights or obligations related to the purchase provisions. In such an event, you would receive common units or other securities substantially similar to the common units in exchange for your shares.
RISKS ARISING FROM OUR ORGANIZATIONAL STRUCTURE AND RELATIONSHIPS WITH ENBRIDGE, THE GENERAL PARTNER, AND THE PARTNERSHIP
Our shares are subject to purchase provisions that could result in you having to sell your shares at a time or price that may be unfavorable to you.
If Enbridge were to exercise any of its rights to purchase our shares that are held by you, you would be required to sell your shares for cash at a time or price that may be undesirable, and you could receive an amount of cash that is less than the amount that you paid for your shares. Any such sale would be taxable for United States federal income tax purposes, and you would recognize a gain or loss equal to the difference between the amount of cash received and your tax basis in the shares sold.
The shares you own are not entitled to vote to elect our directors, and, therefore, you will have little or no opportunity to influence or change our management.
You have little or no opportunity to influence or change our management, because Enbridge indirectly owns all of our voting shares and elects all of our directors. Through the election of our directors, Enbridge indirectly controls us and the Partnership.
5
A person or group owning 20 percent or more of the aggregate number of issued and outstanding common units and our shares, other than Enbridge and its affiliates, may not vote the common units or shares, which could reduce the possibility that you would receive a premium for your shares in a hostile takeover.
A person or group owning 20 percent or more of the aggregate number of issued and outstanding common units and our shares, other than Enbridge and its affiliates, may not vote its common units or shares, which could reduce the possibility that you would receive a premium for your shares in a hostile takeover. This limitation may:
| • | Discourage a person or group from attempting to take over control of us or the Partnership; and |
| • | Reduce the price at which our shares will trade under certain circumstances. |
For example, this limitation could have the result of discouraging a third-party from attempting to remove the General Partner and take over our management of the Partnership by making a tender offer for the common units at a price above their trading market price.
The terms of our shares may be changed in ways you may not like, because our board of directors will have the power to change the terms of our shares in ways our board determines, in its sole discretion, are not materially adverse to you.
As an owner of our shares, you may not like the changes, if any, to the terms of our shares made by our board of directors, and you may disagree with our board’s determination that the changes are not materially adverse to you as a shareholder. If you should disagree with our board’s decisions, your recourse will be limited because our limited liability company agreement gives broad latitude and discretion to our board of directors and eliminates or reduces many of the fiduciary duties that our board of directors otherwise would owe to you.
Our limited liability company agreement limits the fiduciary duties that our directors owe to our shareholders and restricts the remedies available to our shareholders for actions taken by our board of directors that might otherwise constitute a breach of a fiduciary duty.
Our limited liability company agreement contains provisions that modify the fiduciary duties that our board of directors otherwise would owe to our shareholders under state fiduciary duty law. For example, our limited liability company agreement:
| • | Permits our board of directors to make a number of decisions, including the determination of which factors it will consider in resolving conflicts of interest, in its “sole discretion,” which entitles our board of directors to consider only the interests and factors that it desires, with no duty or obligation to give consideration to any interest of, or factors affecting, us, our affiliates or any shareholder; |
| • | Provides that Enbridge, its affiliates, and their respective officers and directors, who in most cases are also our officers and directors, are not required to offer us any business opportunities; and |
| • | Provides that none of our directors or officers will be liable to us or any other person for any act or omission taken or omitted by such director or officer, so long as such director or officer acted in good faith and in a manner that such director or officer reasonably believed to be in, or not opposed to, our best interests. |
These and similar provisions in our limited liability company agreement may restrict the remedies available to our shareholders for actions taken by our board of directors that might otherwise constitute a breach of a fiduciary duty. The Partnership’s partnership agreement contains similar provisions that modify the fiduciary
6
duties that the board of directors of the General Partner would otherwise owe to the Partnership’s unitholders under state fiduciary duty law. As the delegate of the General Partner, these provisions apply to our directors and officers in managing the business and affairs of the Partnership.
Potential conflicts of interest may arise among Enbridge and its shareholders, on the one hand, and us and our shareholders and the Partnership and its unitholders, on the other hand. Because the fiduciary duties of our directors have been modified, our board of directors may be permitted to make decisions that benefit Enbridge and its shareholders or the Partnership and its unitholders more than us and our shareholders.
Conflicts of interest may arise from time to time among Enbridge and its shareholders, on the one hand, and us and our shareholders and the Partnership and its unitholders, on the other hand. Conflicts of interest may also arise from time to time between us and our shareholders, on the one hand, and the Partnership and its unitholders, on the other hand. In managing and controlling us and the Partnership, our board of directors may consider the interests of all parties to a conflict and may resolve those conflicts by making decisions that benefit Enbridge and its shareholders or the Partnership and its unitholders more than us and our shareholders. The following decisions, among others, could involve conflicts of interest:
| • | Whether the Partnership or Enbridge will pursue certain acquisitions or other business opportunities; |
| • | Whether the Partnership will issue additional units or other equity securities or whether it will purchase outstanding units; |
| • | Whether we will issue additional shares; |
| • | The amount of payments to Enbridge and its affiliates for any services rendered for the Partnership’s benefit; |
| • | The amount of costs that are reimbursable to us or Enbridge by the Partnership; |
| • | The enforcement of obligations owed to the Partnership by us, the General Partner and Enbridge, including obligations regarding competition between Enbridge and the Partnership; and |
| • | The retention of separate counsel, accountants or others to perform services for us and the Partnership. |
In these and similar situations, any decision by our board of directors may benefit one group more than another, and in making such decisions, our board of directors may consider the interests of all groups, as well as other factors, in deciding whether to take a particular course of action.
In other situations, Enbridge may take certain actions, including engaging in businesses that compete with the Partnership, that are adverse to us and our shareholders and the Partnership and its unitholders. For example, although Enbridge and its subsidiaries are generally restricted from engaging in any business that is in direct material competition with our businesses, that restriction is subject to the following significant exceptions:
| • | Enbridge and its subsidiaries are not restricted from continuing to engage in businesses, including the normal development of such businesses, in which they were engaged at the time of the Partnership’s initial public offering in December 1991; |
| • | Such restriction is limited geographically only to those routes and products for which the Partnership provided transportation at the time of its initial public offering; |
| • | Enbridge and its subsidiaries are not prohibited from acquiring any business that materially and directly competes with the Partnership as part of a larger acquisition, so long as the majority of the value of the business or assets acquired, in Enbridge’s reasonable judgment, is not attributable to the competitive business; and |
7
| • | Enbridge and its subsidiaries are not prohibited from acquiring any business that materially and directly competes with the Partnership if that business is first offered for acquisition to the Partnership and our board of directors and the Partnership’s unitholders determine not to pursue the acquisition. |
Since the Partnership was not engaged in any aspect of the natural gas business at the time of its initial public offering, Enbridge and its subsidiaries are not restricted from competing with the Partnership in any aspect of the natural gas business. In addition, Enbridge and its subsidiaries would be permitted to transport crude oil and liquid petroleum over routes that are not the same as the Partnership’s Lakehead system, even if such transportation is in direct material competition with the Partnership’s business.
These exceptions also expressly permitted the reversal by Enbridge in 1999 of one of its pipelines that extends from Sarnia, Ontario to Montreal, Quebec. As a result of this reversal, Enbridge competes with the Partnership to supply crude oil to the Ontario, Canada market.
In the event of a liquidation of the Partnership not resulting from any action taken by the Partnership or otherwise approved by us at the direction of our shareholders, the value of our shares would likely decline.
The Partnership may not take any action to cause a liquidation of the Partnership unless, prior to such liquidation, Enbridge has agreed to purchase all of our shares or we have voted to approve such liquidation at the direction of our shareholders. In the event of a liquidation of the Partnership not resulting from any action taken by the Partnership or otherwise approved by us at the direction of our shareholders, the value of your shares will depend on the after-tax amount of the liquidating distribution received by us as the owner of i-units. The terms of the i-units provide that no allocations of income, gain, loss or deduction will be made in respect of the i-units until such time as there is a liquidation of the Partnership. If there is a liquidation of the Partnership, it is intended that we will be allocated income and gain in an amount necessary for the capital account attributable to each i-unit to be equal to that of a common unit. As a result, we likely will realize taxable income upon the liquidation of the Partnership. However, there may not be sufficient amounts of income and gain to cause the capital account attributable to each i-unit to be equal to that of a common unit. If they are not equal, we and, therefore, you will receive less value than would be received by an owner of common units. In that event, the liquidating distribution per common unit will exceed the liquidating distribution per i-unit.
Further, the tax indemnity provided to us by Enbridge only indemnifies us for our tax liabilities arising out of a transaction involving the i-units to the extent we have not received sufficient cash in the transaction generating the tax liability to pay the associated tax. Prior to any liquidation of the Partnership, we do not expect to receive cash in a taxable transaction. If a liquidation of the Partnership occurs, however, we likely would receive cash which we would use, at least in part, to pay taxes. As a result, our residual value and the value of our shares will likely be less than the value of the common units upon the liquidation of the Partnership.
Item 1B. Unresolved Staff Comments
None.
None.
We are a participant in various legal proceedings arising in the ordinary course of business. Some of these proceedings are covered, in whole or in part, by insurance. We believe that the outcome of all these proceedings will not, individually or in aggregate, have a material adverse effect on our financial condition.
8
PART II
Item 5. Market for Registrant’s Common Equity and Related Shareholder Matters
Our Listed Shares are traded on the NYSE under the symbol “EEQ.” The quarterly price ranges per Listed Share are summarized as follows:
| First | Second | Third | Fourth | |||||||||||||
| 2010 Quarters |
||||||||||||||||
| High |
$ | 54.51 | $ | 52.91 | $ | 57.79 | $ | 64.39 | ||||||||
| Low |
$ | 45.69 | $ | 40.50 | $ | 48.78 | $ | 55.04 | ||||||||
| 2009 Quarters |
||||||||||||||||
| High |
$ | 32.19 | $ | 40.60 | $ | 46.03 | $ | 54.32 | ||||||||
| Low |
$ | 23.50 | $ | 28.59 | $ | 34.77 | $ | 43.47 | ||||||||
On February 17, 2011, the last reported sales price of the Listed Shares on the NYSE was $64.42. As of February 10, 2011, there were approximately 19,000 holders of our Listed Shares, which includes individual participants in security position listings.
Distributions. Under the terms of our limited liability company agreement, except in connection with our liquidation, we do not pay distributions on our Listed Shares in cash, but instead make distributions on our Listed Shares in additional shares or fractions of shares. At the same time the Partnership makes a distribution on its common units and i-units, we distribute on each of our shares that fraction of a share determined by dividing the amount of the cash distribution to be made by the Partnership on each common unit by the average market price of a Listed Share determined for the ten-trading day period ending on the trading day immediately prior to the ex-dividend date for our Listed Shares.
The following table sets forth the share distributions, as approved by the board of directors, for each period in the years ended December 31, 2010 and 2009.
| Distribution Declaration Date |
Record Date |
Distribution |
Distribution per Unit of the Partnership |
Average Closing Price of the Listed Shares |
Additional i-units owned |
Listed Shares distributed to Public |
Shares distributed to General Partner |
|||||||||||||||||
| (in dollars, except unit amounts) | ||||||||||||||||||||||||
| 2010 |
||||||||||||||||||||||||
| October 27 |
November 4 | November 12 | $ | 1.0275 | $ | 58.73 | 303,352 | 251,108 | 52,244 | |||||||||||||||
| July 23 |
August 5 | August 13 | $ | 1.0275 | $ | 55.57 | 314,768 | 260,558 | 54,210 | |||||||||||||||
| April 28 |
May 7 | May 14 | $ | 1.0025 | $ | 51.57 | 324,614 | 268,708 | 55,906 | |||||||||||||||
| January 29 |
February 5 | February 12 | $ | 0.9900 | $ | 52.15 | 311,110 | 257,530 | 53,580 | |||||||||||||||
| 1,253,844 | 1,037,904 | 215,940 | ||||||||||||||||||||||
| 2009 |
||||||||||||||||||||||||
| October 29 |
November 5 | November 13 | $ | 0.9900 | $ | 47.28 | 336,128 | 278,239 | 57,889 | |||||||||||||||
| July 24 |
August 6 | August 14 | $ | 0.9900 | $ | 42.16 | 368,333 | 304,898 | 63,435 | |||||||||||||||
| April 30 |
May 7 | May 15 | $ | 0.9900 | $ | 34.55 | 436,857 | 361,621 | 75,236 | |||||||||||||||
| January 30 |
February 5 | February 13 | $ | 0.9900 | $ | 30.17 | 484,494 | 401,053 | 83,441 | |||||||||||||||
| 1,625,812 | 1,345,811 | 280,001 | ||||||||||||||||||||||
In 2010 and 2009, we had non-cash investing activities in the form of the distributions from the i-units and corresponding non-cash financing activities in the form of the distributions to the shareholders of our Listed Shares of $68.3 million and $61.1 million, respectively.
9
On January 28, 2011, our board of directors declared a share distribution payable on February 14, 2011, to shareholders of record as of February 4, 2011, based on the $1.0275 per common unit distribution declared by the Partnership. The Partnership’s distribution increases the number of i-units we own. The number of i-units we received from the Partnership on February 14, 2011 was 285,459.
The total i-units distributed to us was computed by dividing $1.0275, the cash amount distributed per common unit, by $63.50, the average closing price of the Listed Shares on the NYSE for the 10 consecutive trading days prior to the ex-dividend date, multiplied by 17,642,711, the number of shares outstanding prior to the distribution. We distributed additional Listed Shares to the holders of our Listed Shares and additional shares to the General Partner in respect of these additional i-units.
Item 6. Selected Financial Data
The following table sets forth our summary historical financial data for the periods and at the dates indicated. We derived the historical financial data from, and it should be read in conjunction with, our financial statements and notes thereto beginning at page F-1. See also “Item 7. Management’s Discussion and Analysis of Financial Condition and Results of Operations.”
| As of and for the year ended December 31, | ||||||||||||||||||||
| 2010(1) | 2009 | 2008 | 2007 | 2006 | ||||||||||||||||
| Equity income (loss) from investment in Enbridge Energy Partners, L.P. |
$ | (38.2 | ) | $ | 35.0 | $ | 51.8 | $ | 32.0 | $ | 44.6 | |||||||||
| Gain (Loss) on issuance of units by Enbridge Energy Partners, L.P. |
— | — | (13.3 | ) | 17.0 | — | ||||||||||||||
| Income tax benefit (expense) |
14.5 | (13.2 | ) | (14.3 | ) | (17.6 | ) | (15.9 | ) | |||||||||||
| Net income (loss) |
$ | (23.7 | ) | $ | 21.8 | $ | 24.2 | $ | 31.4 | $ | 28.7 | |||||||||
| Basic and diluted earnings per share |
$ | (1.39 | ) | $ | 1.39 | $ | 1.72 | $ | 2.40 | $ | 2.35 | |||||||||
| Weighted average shares outstanding |
17.0 | 15.7 | 14.1 | 13.1 | 12.2 | |||||||||||||||
| Equivalent distribution value per share(2) |
$ | 4.0475 | $ | 3.9600 | $ | 3.8800 | $ | 3.7250 | $ | 3.7000 | ||||||||||
| Number of additional shares distributed |
1.25 | 1.63 | 1.20 | 0.89 | 0.97 | |||||||||||||||
| Total assets at December 31 |
$ | 551.5 | $ | 567.9 | $ | 544.4 | $ | 462.0 | $ | 429.5 | ||||||||||
| (1) | In 2010, the Partnership incurred environmental costs from two crude oil releases that adversely affected it’s operating results and consequently the equity income we derive from the Partnership’s operations. As a result of the crude oil releases, we recognized $52.4 million, after taxes, of equity losses on our statement of income for the year ended December 31, 2010. |
| (2) | Represents the cash distribution paid on each common unit of the Partnership for each period shown. As more fully discussed in Note 3 to our financial statements included in this Annual Report on Form 10-K beginning on page F-1, we receive distributions of additional i-units rather than cash. |
Selected financial data of the Partnership is found in “Part II, Item 6.” of the Partnership’s 10-K, which is hereby incorporated by reference as our results of operations, financial position and cash flows are dependent on the results of operations, financial position and the cash flows of the Partnership.
10
Item 7. Management’s Discussion and Analysis of Financial Condition and Results of Operations
The following discussion and analysis of our financial condition and results of operations is based on and should be read in conjunction with our financial statements and the accompanying notes beginning on page F-1 of this Annual Report on Form 10-K.
BUSINESS OVERVIEW
We are a Delaware limited liability company that was formed on May 14, 2002. We have elected to be treated as a corporation for United States federal income tax purposes. Our sole investment is all of a special class of units issued by the Partnership, referred to as “i-units,” representing limited partner interests in the Partnership. The General Partner owns all of our voting shares and is an indirect, wholly-owned subsidiary of Enbridge.
By agreement with the Partnership, the General Partner and us, we manage the business and affairs of the Partnership, subject to the General Partner’s right to approve specified actions.
The information set forth under “Part II, Item 7. Management’s Discussion and Analysis of Financial Condition and Results of Operations,” in the Partnership’s Annual Report on Form 10-K for the fiscal year ended December 31, 2010, is hereby incorporated by reference as our results of operation, cash flows and financial position are dependent on the results of operation, cash flows and financial position of the Partnership.
RESULTS OF OPERATIONS
Our results of operations consist of our share of earnings of the Partnership attributed to the i-units we own. At December 31, 2010, 2009 and 2008, through our ownership of i-units, we had an approximate 13.7 percent, 13.6 percent and 12.7 percent limited partner interest in the Partnership, respectively. Our percentage ownership of the Partnership will change over time as the number of i-units we own becomes a different percentage of the total limited partner interests outstanding due to our ownership of additional i-units and other issuances of limited partner interests by the Partnership.
The following table presents the Partnership’s allocation of net income to the General Partner and limited partners for the periods presented.
| For the year ended December 31, | ||||||||||||
| 2010 | 2009 | 2008 | ||||||||||
| (in millions) | ||||||||||||
| Net income (loss) attributable to general and limited partner ownership interests in Enbridge Energy Partners, L.P. |
$ | (198.5 | ) | $ | 316.6 | $ | 403.2 | |||||
| Less: net income allocated to the General Partner |
(63.1 | ) | (56.9 | ) | (50.7 | ) | ||||||
| Net income (loss) allocated to limited partners |
$ | (261.6 | ) | $ | 259.7 | $ | 352.5 | |||||
Our net loss of $23.7 million and net income of $21.8 million for the years ended December 31, 2010 and 2009, respectively, represents our equity in earnings and losses of the Partnership attributable to the i-units that we own reduced by deferred income tax expense. Net income of $24.2 million for the year ended December 31, 2008 represents our equity in the earnings of the Partnership, minus the loss we recognized for adjustments the Partnership made to its capital accounts when it issued additional common units in 2008, reduced by deferred income tax expense. Deferred income tax expense is calculated based on the difference between the accounting and tax basis of our investment in the Partnership and the combined federal and state income tax rate of 37.7% in 2010, 37.8% in 2009 and 37.1% in 2008, applied to our share of the earnings of the Partnership for the respective periods.
11
Year ended December 31, 2010 compared with year ended December 31, 2009
For the year ended December 31, 2010, our net income decreased by $45.5 million resulting in a net loss of $23.7 million as compared with the same period in 2009. The decrease is primarily attributable to the $73.2 million decrease in equity income from the Partnership resulting from the decrease in its net income in relation to the same period in 2009. The Partnership incurred environmental costs from two crude oil releases that adversely affected its operating results and consequently the equity income we derive from the Partnership’s operations. As a result of the crude oil releases, we recognized $52.4 million, after taxes, of equity losses on our statement of income for the year ended December 31, 2010. The decrease in equity income from the Partnership was partially offset by $27.7 million of decreased income tax expense associated with the decrease in our net income.
The Partnership records an adjustment to the carrying value of its book capital accounts when it issues additional common units and the new issuance price per unit is greater than or less than the average cost per unit for each class of units. We refer to these adjustments as capital account adjustments. Beginning January 1, 2009, in conjunction with our adoption of the authoritative accounting guidance for noncontrolling interests, we recognize any capital account adjustments recorded by the Partnership to the book capital account it maintains for our i-units by increasing or decreasing our investment in the Partnership and recording a corresponding capital account adjustment directly to “Shareholders’ equity” on our statement of financial position. We adopted prospectively the applicable authoritative guidance, except for any relevant presentation and disclosure requirements. Prior to our adoption of this guidance, we historically recognized the capital account adjustment recorded by the Partnership to the book capital account it maintains for our i-units by increasing or decreasing our investment in the Partnership and recording a corresponding gain or loss in our statement of income. Gain or loss recognition is an accounting convention we have historically applied as our method of recognizing these capital account adjustments made by the Partnership.
The following table presents the Partnership’s 2010 Class A common unit issuances, our ownership percentage in the Partnership before and subsequent to each issuance as well as the gain or loss we recognized from the capital account adjustments recorded by the Partnership.
| Issuance Date |
Number of Class A common units Issued |
Offering Price per Class A common unit |
Net Proceeds to the Partnership(1) |
Ownership Percentage in the Partnership Prior to the Issuance |
Ownership Percentage in the Partnership After the Issuance |
Capital Account Adjustments |
||||||||||||||||||
| (in millions, except units and per unit amounts) | ||||||||||||||||||||||||
| 2010: |
||||||||||||||||||||||||
| November |
5,980,000 | $ | 60.12 | $ | 354.8 | 14.4 | % | 13.7 | % | $ | 25.5 | |||||||||||||
| (1) | Net of underwriters’ fees and discounts, commissions and issuance expenses and including contributions from the General Partner to maintain its two percent general partner interest in the Partnership. |
12
Also, in June 2010, the Partnership entered into an Equity Distribution Agreement, or EDA, for the issue and sale from time to time of its Class A common units up to an aggregate amount of $150.0 million. The following table presents the net proceeds from the Partnership’s Class A common unit issuances, resulting from the EDA, during the year ended December 31, 2010:
| Issuance Dates |
Number of Class A common units Issued |
Average Offering Price per Class A common unit |
Net Proceeds to the Partnership(1) |
Ownership Percentage in the Partnership Prior to the Issuance |
Ownership Percentage in the Partnership After the Issuance |
Capital Account Adjustments |
||||||||||||||||||
| (in millions, except units and per unit amounts) | ||||||||||||||||||||||||
| April 1 to June 30, 2010 |
287,345 | $ | 52.52 | $ | 15.1 | 14.1 | % | 14.1 | % | $ | 0.7 | |||||||||||||
| July 1 to September 30, 2010 |
686,741 | $ | 54.21 | 37.0 | 14.3 | % | 14.2 | % | 1.8 | |||||||||||||||
| October 1 to December 31, 2010(2) |
144,615 | $ | 55.70 | 7.8 | 14.2 | % | 14.2 | % | 0.5 | |||||||||||||||
| 2010 Totals |
1,118,701 | $ | 59.9 | $ | 3.0 | |||||||||||||||||||
| (1) | Net of commissions and issuance costs and including contributions from the General Partner to maintain its two percent general partner interest in the Partnership. |
| (2) | Issuances under the EDA during the three-month period ended December 31, 2010 occurred from October 1 to October 5, 2010. |
During the year ended December 31, 2010, we recorded a total of $28.5 million in capital account adjustments in relation to the Partnership’s Class A common unit issuances, detailed above. The net of tax effect of these capital account adjustments on our December 31, 2010 statement of shareholders’ equity was $17.9 million.
Year ended December 31, 2009 compared with year ended December 31, 2008
For the year ended December 31, 2009, our net income decreased by $2.4 million as compared to the same period in 2008. The decrease is primarily attributable to the $16.8 million decrease in equity income from the Partnership resulting from the decrease in its net income in relation to the same period in 2008. The factors that attributed to the decline in our equity income from the Partnership for the year ended December 31, 2009 as compared to the same period in 2008 are as follows:
| • | An $11.4 million decrease in equity income resulting from the Partnership’s unrealized non-cash, mark-to-market activity from derivative instruments that do not qualify for hedge accounting treatment under authoritative accounting guidance; and |
| • | An $8.8 million decline in equity income related to the Partnership’s November 2009 disposition of non-core natural gas assets. |
Our equity income for the year ended December 31, 2009 also includes $3.0 million of additional equity income we recorded for our share of earnings recognized by the Partnership during the year ended December 31, 2009 for previously unrecognized revenue of prior periods. We recognized the additional equity income following our determination that the previously unrecognized amounts were not material to the current or any prior period. The additional revenue recognized by the Partnership was primarily the result of billing and volumetric errors associated with application of a joint tariff agreement among the Partnership and Mustang Pipeline, LLC that were identified during the year.
13
Partially offsetting the decline in equity income is $13.3 million of pre-tax net losses we recognized during the year ended December 31, 2008, for adjustments the Partnership makes to the capital accounts of its partners when it issues additional limited partner interests that we did not have in the same period of 2009, due to changes in authoritative accounting guidance discussed below. In addition, the decline in our equity income was partially offset by a decrease of income tax expense associated with lower amount of equity earnings.
The following table presents the Partnership’s 2008 Class A common unit issuances, our ownership percentage in the Partnership before and subsequent to each issuance as well as the gain or loss we recognized from the capital account adjustments recorded by the Partnership.
| Issuance Date |
Number of Class A common units Issued |
Offering Price per Class A common unit |
Net Proceeds to the Partnership(1) |
Ownership Percentage in the Partnership Prior to the Issuance |
Ownership Percentage in the Partnership After the Issuance |
Capital
Account Adjustments(2)(3) |
||||||||||||||||||
| (in millions, except units and per unit amounts) | ||||||||||||||||||||||||
| 2008: |
||||||||||||||||||||||||
| December |
16,250,000 | $ | 30.76 | $ | 509.8 | 14.7 | % | 12.7 | % | $ (19.7 | ) | |||||||||||||
| March |
4,600,000 | $ | 49.00 | 221.8 | 14.8 | % | 14.1 | % | 6.4 | |||||||||||||||
| 2008 Totals |
20,850,000 | $ | 731.6 | $ (13.3 | ) | |||||||||||||||||||
| (1) | Net of underwriters’ fees and discounts, commissions and issuance expenses and including contributions from the General Partner to maintain its two percent general partner interest in the Partnership. |
| (2) | Before the effect of income taxes. |
| (3) | Prior to our January 1, 2009 adoption of the authoritative accounting guidance for noncontrolling interests, we recognized changes recorded by the Partnership to our book capital accounts resulting from Partnership issuances as a gain or loss in our statements of income. |
LIQUIDITY AND CAPITAL RESOURCES
Our authorized capital structure consists of two classes of membership interests: (1) our Listed Shares, which represent limited liability company interests with limited voting rights, and (2) our voting shares, which represent limited liability company interests with full voting rights. At December 31, 2010, our issued capitalization consisted of $748.5 million associated with our 17,642,709 Listed Shares outstanding.
The number of our shares outstanding, including the voting shares owned by the General Partner, will at all times equal the number of i-units we own in the Partnership. Typically, the General Partner and owners of the Partnership’s Class A and B common units will receive distributions from the Partnership in cash. Instead of receiving cash distributions on the i-units we own, however, we receive additional i-units under the terms of Partnership’s partnership agreement. The amount of additional i-units we receive is calculated by dividing the amount of the per unit cash distribution paid by the Partnership on each of its Class A and B common units by the average closing price of one of our Listed Shares on the New York Stock Exchange, or NYSE, as determined for a 10-trading day period ending on the trading day immediately prior to the ex-dividend date for our shares, multiplied by the number of shares outstanding on the record date. We make share distributions to our shareholders concurrently with the i-unit distributions we receive from the Partnership that increases the number of i-units we own. As a result of our share distributions, the number of our shares outstanding is equal to the number of i-units that we own in the Partnership.
We used substantially all of the net proceeds from our initial public offering to purchase i-units from the Partnership and to compensate Enbridge (the ultimate parent company of the General Partner) for its purchase provisions and tax indemnities. Under the Enbridge purchase provisions, which are a part of our limited liability company agreement, Enbridge has the right, under limited circumstances, to purchase our outstanding shares. In addition, Enbridge generally agreed to indemnify us for any tax liability attributable to our formation, our
14
management of the Partnership or our ownership of the i-units. Additionally, Enbridge generally agreed to indemnify us for any taxes arising from a transaction involving the i-units to the extent the transaction does not generate sufficient cash to pay such taxes, in each case, other than any Texas franchise taxes or other capital-based foreign, state or local taxes that are required to be paid or reimbursed by the Partnership under the delegation of control agreement.
If we incur liabilities or other obligations in connection with the performance of our obligations under the delegation of control agreement, we are entitled to be reimbursed or to be indemnified by the Partnership or the General Partner. Thus, we expect that our expenditures associated with managing the business and affairs of the Partnership and the reimbursement of these expenses that we receive will continue to be equal. As previously stated, we do not receive quarterly distributions of cash on the i-units we hold. Therefore, we expect neither to generate nor to require significant amounts of cash in ongoing operations. Any net cash proceeds we receive from the sale of additional shares will immediately be used to purchase additional i-units. Accordingly, we do not anticipate any other sources of or needs for additional liquidity.
We are not permitted to borrow money or incur debt other than with Enbridge and its affiliates without the approval of holders owning at least a majority of our shares.
INCOME TAXES
We are a limited liability company that has elected to be treated as a corporation for federal income tax purposes. Deferred income tax assets and liabilities are recognized for temporary differences between the basis of our assets and liabilities for financial reporting and income tax purposes.
The delegation of control agreement states that the General Partner bears the economic impact for our taxes only in the event we do not have sufficient cash to pay them. Accordingly, we accrue state income taxes in addition to federal income taxes. The effective tax rate we have used in computing the income tax provision in 2010 is 37.7%, which represents the federal statutory rate of 35.0% and the effective state rate of 2.7%.
Our income tax benefit of $14.5 million for the year ended December 31, 2010 compares to the $13.2 million of income tax expense we incurred for the same period in 2009. The decrease in income tax benefit was due to the taxable loss associated with the lower equity income we recognized from the Partnership.
Our income tax expense of $13.2 million for the year ended December 31, 2009 is $1.1 million less than the $14.3 million we incurred for the same period in 2008. The decrease in income tax expense was due to the decrease in taxable income primarily associated with the lower equity income we recognized from the Partnership, partially offset by the net loss that was recognized in 2008 relating to a capital account adjustment that did not occur in 2009.
SUBSEQUENT EVENTS
Share Split
On February 18, 2011, the board of directors of Enbridge Management approved a split of the Listed and voting shares of Enbridge Management to be effected by a distribution on April 21, 2011 of one Listed share for each Listed share outstanding and one voting share for each voting share outstanding to shareholders of record on April 7, 2011. The General Partner is the holder of all of our voting shares and approximately 3,087,629 of our Listed shares.
Share Distribution
On January 28, 2011, our board of directors declared a share distribution payable on February 14, 2011, to shareholders of record as of February 4, 2011 based on the $1.0275 per limited partner unit distribution declared by the Partnership. We received 285,459 i-units from the Partnership, which is computed by dividing $1.0275, the cash amount distributed per limited partner unit, by the average closing price of one of our Listed Shares on the NYSE as determined for the 10-trading day period ending on the trading day immediately prior to the ex-dividend date for our shares multiplied by the number of shares outstanding prior to the distribution. We distributed 236,297 additional Listed Shares to our listed shareholders and additional shares to the General Partner in respect of these additional i-units.
15
Our share distributions are dependent upon the cash distribution declarations of the Partnership. In the near-term, the Partnership expects to maintain its present distribution rate to its unitholders.
CRITICAL ACCOUNTING POLICIES
Our financial statements are prepared in accordance with accounting principles generally accepted in the United States of America, which we refer to as United States GAAP. The preparation of these financial statements in conformity with United States GAAP requires our management to make estimates and assumptions that affect the reported amount of assets, liabilities, revenues and expenses, and the disclosure of contingent assets and liabilities. Our management evaluates these estimates on an ongoing basis, utilizing historical experience, consultation with experts and other methods considered reasonable in the particular circumstances. Nevertheless, actual results may differ significantly from these estimates. Any effects on the financial statements resulting from revisions to these estimates are recorded in the period in which the facts that give rise to the revision become known.
Accounting for Investment in the Partnership
We use the equity method of accounting for our ownership interest in the Partnership’s net income and comprehensive income because we exercise significant influence over the Partnership. We record our share of earnings of the Partnership in the period in which it is earned. At December 31, 2010, 2009, and 2008, we owned approximately 13.7 percent, 13.6 percent and 12.7 percent of the Partnership, respectively. Our ownership percentage changes as the Partnership issues additional limited partner units. Changes in the calculation of our ownership percentage affects our net income and comprehensive income.
Capital Account Adjustments on Issuances of Common Units by the Partnership
The Partnership records an adjustment to the carrying value of its book capital accounts when it issues additional common units and the new issuance price per unit is greater than or less than the average cost per unit for each class of units. We refer to these adjustments as capital account adjustments. Beginning January 1, 2009, in conjunction with our adoption of the authoritative accounting guidance for noncontrolling interests, we recognize any capital account adjustments recorded by the Partnership to the book capital account it maintains for our i-units by increasing or decreasing our investment in the Partnership and recording a corresponding capital account adjustment directly to “Shareholders’ equity” on our statement of financial position. Prior to our adoption of this guidance, we historically recognized the capital account adjustment recorded by the Partnership to the book capital account it maintains for our i-units by increasing or decreasing our investment in the Partnership and recording a corresponding gain or loss in our statement of income. Gain or loss recognition is an accounting convention we have historically applied as our method of recognizing these capital account adjustments made by the Partnership.
OFF-BALANCE SHEET ARRANGEMENTS
We have no off-balance sheet arrangements.
RECENT ACCOUNTING PRONOUNCEMENTS NOT YET ADOPTED
None.
Item 7A. Quantitative and Qualitative Disclosures About Market Risk
The nature of our business and operations is such that no activities or transactions of the type requiring discussion under this item are conducted.
16
For a discussion of these matters as they pertain to the Partnership, please read “Part II, Item 7A.” of the Partnership’s 10-K, which is hereby incorporated by reference as activities of the Partnership have an impact on our results of operations and financial position.
Item 8. Financial Statements and Supplementary Data
Our financial statements, together with the notes thereto and the report of the independent registered public accounting firm, and unaudited supplementary information, beginning on page F-1 of this report, are hereby incorporated into this report by reference.
The financial statements of the Partnership, together with the notes thereto, the report of the independent registered public accounting firm and unaudited supplementary information, can be found in the Partnership’s 10-K in “Part II, Item 8,” which is hereby incorporated by reference as activities of the Partnership have an impact on our results of operations and financial position.
Item 9. Changes in and Disagreements with Accountants on Accounting and Financial Disclosure
None.
Item 9A. Controls and Procedures
DISCLOSURE CONTROLS AND PROCEDURES
Enbridge Management and Enbridge maintain systems of disclosure controls and procedures designed to provide reasonable assurance that we are able to record, process, summarize and report the information required to be disclosed in our annual and quarterly reports under the Exchange Act, within the time periods specified by the SEC’s rules and forms. Our management has evaluated, the effectiveness, with the participation of our principal executive officer and principal financial officer, the effectiveness of our disclosure controls and procedures as of December 31, 2010. Based upon that evaluation, our principal executive officer and principal financial officer concluded that our disclosure controls and procedures are effective to accomplish their purpose. In conducting this assessment, our management relied on similar evaluations conducted by employees of Enbridge affiliates who provide certain treasury, accounting and other services on our behalf.
INTERNAL CONTROL OVER FINANCIAL REPORTING
Management’s Report on Internal Control Over Financial Reporting
Our management is responsible for establishing and maintaining adequate internal control over our financial reporting as such term is defined in Rule 13a-15(f) of the Exchange Act.
Our internal control over financial reporting is a process designed under the supervision and with the participation of our principal executive and principal financial officers, and effected by our board of directors, management and other personnel, to provide reasonable assurance regarding the reliability of our financial reporting and the preparation of our financial statements for external reporting purposes in accordance with United States GAAP.
Our internal control over financial reporting includes policies and procedures that:
| • | Pertain to the maintenance of records that, in reasonable detail, accurately and fairly reflect our transactions and dispositions of our assets; |
| • | Provide reasonable assurance that our transactions are recorded as necessary to permit preparation of our financial statements in accordance with United States GAAP, and that our receipts and expenditures are being made only in accordance with the authorizations of our management and directors; and |
17
| • | Provide reasonable assurance that unauthorized acquisition, use or disposition of our assets that could have a material effect on our financial statements is prevented or timely detected. |
Our internal control over financial reporting may not prevent or detect all misstatements because of its inherent limitations. Additionally, projections of any evaluation of effectiveness to future periods are subject to the risk that controls may become inadequate because of changes in conditions or deterioration in the degree of compliance with our policies and procedures.
Our management assessed, with the participation of our principal executive and principal financial officers, the effectiveness of our internal control over financial reporting as of December 31, 2010, based on the framework established in Internal Control—Integrated Framework issued by the Committee of Sponsoring Organizations of the Treadway Commission, or COSO. Based on this assessment, our management concluded that we maintained effective internal control over financial reporting as of December 31, 2010.
PricewaterhouseCoopers LLP, an independent registered public accounting firm, has issued an attestation report on our internal control over financial reporting as of December 31, 2010, beginning on page F-2.
Changes in Internal Control Over Financial Reporting
We have not made any changes that have materially affected, or are reasonably likely to materially affect, our internal control over financial reporting during the three month period ended December 31, 2010.
None.
18
PART III
Item 10. Directors, Executive Officers and Corporate Governance
DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANT
Set forth below is certain information concerning the directors and executive officers of the General Partner and of Enbridge Management as the delegate of the General Partner under a delegation of control agreement among us, the General Partner and the Partnership. All directors of the General Partner are elected annually and may be removed by Enbridge Pipelines Inc., as the sole shareholder of the General Partner. All directors of Enbridge Management were elected and may be removed by the General Partner, as the sole holder of Enbridge Management’s voting shares. All officers of the General Partner and Enbridge Management serve at the discretion of the respective boards of directors of the General Partner and Enbridge Management. All directors and officers of the General Partner hold identical positions in Enbridge Management, except for Mark A. Maki and Terrance L. McGill.
| Name |
Age | Position | ||||
| Directors and Executive Officers: |
||||||
| Martha O. Hesse |
68 | Director and Chairman of the Board | ||||
| Jeffrey A. Connelly |
64 | Director | ||||
| J. Herbert England |
64 | Director | ||||
| Dan A. Westbrook |
58 | Director | ||||
| Mark A. Maki |
46 | President of Enbridge Management, Senior Vice President of General Partner and Director | ||||
| Terrance L. McGill |
56 | President of General Partner, Senior Vice President of Enbridge Management and Director | ||||
| Al Monaco |
51 | Director | ||||
| Stephen J. Wuori |
53 | Executive Vice President—Liquids Pipelines and Director | ||||
| Stephen J.J. Letwin |
55 | Retired Managing Director and Director | ||||
| George K. Petty |
69 | Retired Director | ||||
| Officers: |
||||||
| Richard L. Adams |
46 | Vice President—U.S. Operations, Liquids Pipelines | ||||
| Janet L. Coy |
53 | Vice President—Natural Gas Marketing | ||||
| E. Chris Kaitson |
54 | Vice President—Law | ||||
| Douglas V. Krenz |
59 | Senior Vice President—Commercial & Business Development | ||||
| John A. Loiacono |
48 | Vice President—Commercial Activities | ||||
| Susan E. Miller |
52 | Vice President—Integrity | ||||
| Byron C. Neiles |
45 | Vice President—Major Projects | ||||
| Stephen J. Neyland |
43 | Vice President—Finance | ||||
| Kerry C. Puckett |
49 | Vice President—Engineering and Operations, Gathering and Processing | ||||
| William M. Ramos |
51 | Controller | ||||
| Allan M. Schneider |
52 | Vice President—Regulated Engineering and Operations | ||||
| Bruce A. Stevenson |
55 | Corporate Secretary | ||||
| David K. Wudrick |
47 | Treasurer | ||||
| Leon A. Zupan |
55 | Vice President—Liquids Pipelines Operations | ||||
DIRECTORS AND EXECUTIVE OFFICERS
Martha O. Hesse
Martha O. Hesse was elected as Chairman of the Board in May 2007 and as a director of the General Partner and Enbridge Management in March 2003 and serves as a member of the Audit, Finance & Risk Committee. Ms. Hesse was President and Chief Executive Officer of Hesse Gas Company from 1990 through 2003. She
19
served as Chairman of the FERC from 1986 to 1989. Ms. Hesse also served as Senior Vice President of First Chicago Corporation and as Assistant Secretary for Management and Administration of the United States Department of Energy. She is a private investor and currently serves as a director of Mutual Trust Financial Group.
Ms. Hesse’ contribution to the Board is enhanced by her experience as the former Chairman of the FERC and as an Assistant Secretary with the Department of Energy in Washington, D.C. particularly since many of our operations are federally regulated. Her government experience in combination with her banking and gas marketing experience fits well with our strategic direction.
Jeffrey A. Connelly
Jeffrey A. Connelly was elected a director of the General Partner and Enbridge Management in January 2003 and serves as the Chairman of the Audit, Finance & Risk Committee. Mr. Connelly served as Executive Vice President, Senior Vice President and Vice President of the Coastal Corporation from 1988 to 2001.
Mr. Connelly brings significant financial experience to our Board because of his experience as the former Treasurer and other executive roles with Coastal Corporation a former Fortune 500 Company whose principal business segments included gathering, processing, storage, and distribution of natural gas; oil refining and marketing; oil exploration and production; electric power production; and coal mining. He also served as the chief executive officer for several wholly owned Coastal subsidiaries.
J. Herbert England
J. Herbert England was elected a director of the General Partner and Enbridge Management in July 2010 and serves on the Audit, Finance & Risk Committee. Mr. England also serves on the Enbridge board of directors and the board of directors of FuelCell Energy, Inc. Mr. England has been Chair & Chief Executive Officer of Stahlman-England Irrigation Inc. (contracting company) in southwest Florida since 2000. From 1993 to 1997, Mr. England was the Chair, President & Chief Executive Officer of Sweet Ripe Drinks Ltd. (fruit beverage manufacturing company). Prior to 1993, Mr. England held various executive positions with John Labatt Limited (brewing company) and its operating companies, Catelli Inc. (food manufacturing company) and Johanna Dairies Inc. (dairy company).
Mr. England brings to the Board a wide range of financial executive experience because of his previous positions as well as his service with other public company audit committees.
Dan A. Westbrook
Dan A. Westbrook was elected a director of the General Partner and Enbridge Management in October 2007 and serves on the Audit, Finance & Risk Committee. In 2008 he joined the board of directors of the Carrie Tingley Hospital Foundation and currently also serves on the board of Ivanhoe Mines, an international mining company. From May 2007 until August 2008 he served on the board of directors of Synenco Energy Inc. where he was a member of their Audit & Risk and Finance Committees, until Synenco was acquired by Total E&P Canada. From January 2006 until May 2008, he served on the board of directors of Knowledge Systems Inc., a privately held United States company prior to its acquisition by Halliburton. From 2001 to 2005 Mr. Westbrook served as President of BP China Gas, Power & Upstream and Vice-Chairman of the board of directors of Dapeng LNG, a Sino joint venture between BP subsidiaries and other Chinese companies. From 1999 to 2001 Mr. Westbrook was the Associate President with BP in Argentina. Prior to that, Mr. Westbrook held executive positions with BP in Houston, Russia, Chicago and The Netherlands. Through his long career in the petroleum exploration and production industry, including his other public company directorships and previous service as President of B.P. China, Mr. Westbrook provides our Board with extensive industry experience, leadership skills, international and petroleum development experience, as well as knowledge of our business environment.
20
Mark A. Maki
Mark A. Maki was elected President of Enbridge Management and Senior Vice President of the General Partner and a director of both in October 2010. Mr. Maki previously served as Vice President—Finance of the General Partner and Enbridge Management from July 2002. Prior to that time, Mr. Maki served as Controller of the General Partner and Enbridge Management from June 2001, and prior to that, as Controller of Enbridge Pipelines from September 1999.
Mr. Maki progressed through a series of accounting and financial roles of increasing responsibility during his 25 years with Enbridge, in the United States and Canada. Through his broad range of domestic and Canadian experience in the pipeline industry Mr. Maki provides our Board with financial expertise, leadership skills in our industry and knowledge of our local community and business environment.
Terrance L. McGill
Terrance L. McGill was elected as a director and as President of the General Partner and Senior Vice President of Enbridge Management in October 2010. Prior to October 2010 Mr. McGill served as a director and President of the General Partner and of Enbridge Management since May 2006. Mr. McGill previously served as Vice President, Commercial Activity and Business Development of the General Partner and Enbridge Management from April 2002 and Chief Operating Officer from July 2004. Prior to that time, Mr. McGill was President of Columbia Gulf Transmission Company from January 1996 to March 2002.
As the President of the General Partner, Mr. McGill gives our Board insight and in-depth knowledge of our industry and our specific operations and strategies. He also provides leadership skills, pipeline operations and management expertise and knowledge of our local community and business environment, which he has gained through his long career in the oil and gas industry.
Al Monaco
Al Monaco was elected as a director of the General Partner and Enbridge Management in October 2010 and simultaneously resigned as an officer of these entities. He also serves as President, Gas Pipelines, Green Energy & International of Enbridge since October 2010. Previously, Mr. Monaco was elected Executive Vice President, Major Projects of the General Partner and Enbridge Management in January 2008 and held similar responsibilities with Enbridge. Prior to that Mr. Monaco was President of Enbridge Gas Distribution Inc., a subsidiary of Enbridge, from September 2006, Senior Vice President, Planning & Development, Enbridge from June 2003, and Vice President, Financial Services, of Enbridge from February 2002. Mr. Monaco was Treasurer of the General Partner from February 2002 and Enbridge Management from its formation until his resignation from those positions in April 2003.
Since 1995 Mr. Monaco has held multiple roles of increasing financial and managerial responsibility during his career with Enbridge. Mr. Monaco brings the Board pipeline industry experience, extensive knowledge in the areas of investor relations, treasury and corporate finance, as well as leadership skills and knowledge of his local community and business environment.
Stephen J. Wuori
Stephen J. Wuori was elected a director of the General Partner and Enbridge Management in January 2008 and is also the Executive Vice President—Liquids Pipelines for the General Partner and Enbridge Management. Mr. Wuori also was elected President, Liquids Pipelines of Enbridge in October 2010. From 2008 to October 2010, Mr. Wuori served Enbridge as Executive Vice President, Liquids Pipelines. He was previously Executive Vice President, Chief Financial Officer and Corporate Development of Enbridge from 2006 to 2008, Group Vice President and Chief Financial Officer of Enbridge from 2003 to 2006 and Group Vice President, Corporate Planning and Development of Enbridge from 2001 to 2003.
21
As Executive Vice President—Liquids Pipelines, Mr. Wuori provides our Board insight and in-depth knowledge of our industry and our specific operations and strategies. He also provides financial expertise, leadership skills, pipeline operations expertise and knowledge of our business environment, which he has gained through his long career with Enbridge.
Stephen J.J. Letwin
Stephen J.J. Letwin retired from all his positions at Enbridge, the General Partner and Enbridge Management, in October 2010. Mr. Letwin was elected Managing Director of the General Partner and Enbridge Management in May 2006 and was also Executive Vice President, Gas Transportation & International of Enbridge. Prior to his election he served Enbridge as Group Vice President, Gas Strategy & Corporate Development from April 2003; prior thereto he served Enbridge as Group Vice President, Distribution & Services from September 2000. He currently serves as a director of Precision Drilling Trust and Gaz Metro, LP.
Mr. Letwin’s extensive oil and gas industry experience in both financial and executive management roles allowed him to contribute significantly to the Company both as Managing Director of the General Partner and as a Board member.
George K. Petty
George K. Petty retired as a director of the General Partner and of Enbridge Management effective January 19, 2011. He had been elected a director of the General Partner in February 2001 and Enbridge Management upon its formation and served on the Audit, Finance & Risk Committee. Mr. Petty has served as a director of Enbridge since January 2001 and continues to serve Enbridge in that capacity. He served as President and Chief Executive Officer of Telus Corporation, a Canadian telecommunications company, from November 1994 to November 1999. Mr. Petty retired in 1994 from AT&T Corporation as a Vice-President after 25 years of service. He currently serves on the Board of Directors of FuelCell Energy, Inc.
Mr. Petty’s experience as the chief executive officer of a regulated telecommunications company provided valuable insight particularly to the regulated portions of our businesses.
OTHER OFFICERS
Richard L. Adams was elected Vice President, U.S. Operations, Liquids Pipelines of the General Partner and Enbridge Management in February 2010 prior to which he was Vice President, U.S. Engineering and Project Execution, Liquids Pipelines from June 2007 and prior to which he was Vice President, Operations and Technologies from April 2003. Prior to April 2003, he was Director of Technology & Operations for the General Partner and Enbridge Management from 2001, and Director of Field Operations and Technical Services and Director of Commercial Activities for OCENSA/Enbridge in Bogota, Colombia from 1997 to 2001.
Janet L. Coy was elected Vice President—Natural Gas Marketing of the General Partner and Enbridge Management in October 2010. Ms. Coy previously served as President of the natural gas marketing subsidiaries of Enbridge Management and the General Partner since the acquisition of Midcoast Energy Resources, Inc. and continues to serve in that capacity.
E. Chris Kaitson was elected Vice President, Law of the General Partner and Enbridge Management in May 2007. He also currently serves as Deputy General Counsel of Enbridge. Prior to that he was Assistant General Counsel and Assistant Secretary of the General Partner and Enbridge Management from July 2004. He served as Corporate Secretary of the General Partner and Enbridge Management from October 2001 to July 2004. He was previously Assistant Corporate Secretary and General Counsel of Midcoast Energy Resources, Inc. from 1997 until it was acquired by Enbridge in May 2001.
22
Douglas V. Krenz was elected Senior Vice President—Commercial & Business Development of the General Partner and Enbridge Management in October 2010. Previously, from January 2005 to November 2009, Mr. Krenz served as Vice President of the General Partner and Enbridge Management. Prior to that, he was President of Shell Gas Transmission, LLC (previously Shell Gas Pipelines Co.) from March 1996 to December 2004.
John A. Loiacono was elected Vice President, Commercial Activities, of the General Partner and Enbridge Management in July 2006. Prior to that, he was Director of Commercial Activities for the General Partner and Enbridge Management from April 2003 and commenced employment with Midcoast Energy Resources, Inc. in February 2000 as an Asset Optimizer until it was acquired by Enbridge in May 2001.
Susan E. Miller was elected Vice President—Integrity of the General Partner and Enbridge Management in October 2010. Ms. Miller previously served as Vice President, International Business Development for Enbridge since September 2009, including serving as General Manager of the OCENSA crude oil pipeline in Colombia since 2006. Ms. Miller has been an Enbridge employee since 1988.
Byron C. Neiles was elected Vice President—Major Projects of the General Partner and Enbridge Management in October 2010. Mr. Neiles previously served Enbridge as Vice President in the Major Projects division since April 2008, prior to which he was Vice President of Enbridge Gas Distribution from 2003 to 2008. Mr. Neiles joined Enbridge in 1994.
Stephen J. Neyland was elected Vice President—Finance of the General Partner and Enbridge Management in October 2010. Mr. Neyland was previously Controller of the General Partner and Enbridge Management effective September 2006. Prior to his election he served as Controller, Natural Gas from January 2005, Assistant Controller from May 2004 to January 2005, and in other managerial roles in Finance and Accounting from December 2001 to May 2004. Prior to that time, Mr. Neyland was Controller of Koch Midstream Services from 1999 to 2001.
Kerry C. Puckett was elected Vice President, Engineering and Operations, Gathering and Processing of the General Partner and Enbridge Management in October 2007. Prior to his election he served as General Manager of Engineering and Operations from 2004 and Manager of Operations from 2002 to 2004. Prior to that time, he served as Manager of Business Development for Sid Richardson Energy Services Company.
William M. Ramos was elected Controller of the General Partner and Enbridge Management in October 2010. Prior to his election he served as Assistant Controller and in other managerial roles of the General Partner with responsibility for financial accounting, reporting and control from April 2005. Mr. Ramos served in various management capacities in energy-related companies prior to 2005.
Allan M. Schneider was elected Vice President, Regulated Engineering and Operations of the General Partner and Enbridge Management in October 2007. Prior to his election he served as Director of Engineering and Operations for Regulated & Offshore and Director of Engineering Services from January 2005. Prior to that, Mr. Schneider was Vice President of Engineering and Operations for Shell Gas Transmission, L.L.C. from December 2000.
Bruce A. Stevenson was elected Corporate Secretary of the General Partner and Enbridge Management in July 2004. Between 2000 and 2004, Mr. Stevenson held management positions with Reliant Energy, Inc. and Arthur Andersen LLP. Prior to that Mr. Stevenson was General Counsel & Corporate Secretary of Alberta Natural Gas Company Ltd, a Canadian gas processing and transmission company that was acquired by TransCanada Pipelines.
David K. Wudrick was elected Treasurer of the General Partner and Enbridge Management in April 2010. He is also Director, Finance of Enbridge, a position he has held since April 2010. Previously he was Director, Treasury of Enbridge from 2007 and Treasurer of Enbridge Management Service Inc., a wholly-owned subsidiary of Enbridge from 2005.
23
Leon A. Zupan was elected Vice President—Operations, Liquids Pipelines of the General Partner and Enbridge Management in July 2004, and is Senior Vice President—Operations of Enbridge. Mr. Zupan previously served as Vice President, Operations of Enbridge from 2004 and Vice President, Development & Services for Enbridge Pipelines from 2000.
SECTION 16(a) BENEFICIAL OWNERSHIP REPORTING COMPLIANCE
Section 16(a) of the Exchange Act requires our directors, executive officers and 10% beneficial owners to file with the SEC reports of ownership and changes in ownership of our equity securities and to furnish us with copies of all reports filed. Based on our review of the Section 16(a) filings that have been received by us and inquiries made to our directors and executive officers, we believe that all filings required to be made under Section 16(a) during 2010 and prior years were timely made.
GOVERNANCE MATTERS
Our board of directors currently does not consist of a majority of independent directors. We are a “controlled company,” as that term is used in NYSE Rule 303A, because all of our voting shares are owned by the General Partner. Because we are a controlled company, the NYSE listing standards do not require that we or the General Partner have a majority of independent directors or a nominating or compensation committee of the General Partner’s board of directors.
The NYSE listing standards require our principal executive officer to annually certify that he is not aware of any violation by the Partnership of the NYSE corporate governance listing standards. Accordingly, this certification was provided as required to the NYSE on March 10, 2010.
CODE OF ETHICS, STATEMENT OF BUSINESS CONDUCT AND CORPORATE GOVERNANCE GUIDELINES
We have adopted a Code of Ethics applicable to our senior officers, including the principal executive officer, principal financial officer and principal accounting officer of Enbridge Management. A copy of the Code of Ethics for Senior Financial Officers is available on our website at www.enbridgemanagement.com and is included herein as Exhibit 14.1. We post on our website any amendments to or waivers of our Code of Ethics for senior officers, and we intend to satisfy any disclosure requirements that may arise under Form 8-K relating to this information through such postings. Additionally, this material is available in print, free of charge, to any person who requests the information. Persons wishing to obtain this printed material should submit a request to Corporate Secretary, c/o Enbridge Energy Management, L.L.C, 1100 Louisiana, Suite 3300, Houston, TX 77002.
We also have a Statement of Business Conduct applicable to all of our employees, officers and directors. A copy of the Statement of Business Conduct is available on our website at www.enbridgemanagement.com. We post on our website any amendments to or waivers of our Statement of Business Conduct, and we intend to satisfy any disclosure requirements that may arise under Form 8-K relating to this information through such postings. Additionally, this material is available in print, free of charge, to any person who requests the information. Persons wishing to obtain this printed material should submit a request to Corporate Secretary, c/o Enbridge Energy Management, L.L.C., 1100 Louisiana, Suite 3300, Houston, TX 77002.
We also have a statement of Corporate Governance Guidelines that sets forth the expectation of how our board of directors should function and its position with respect to key corporate governance issues. A copy of the Corporate Governance Guidelines is available on our website at www.enbridgemanagement.com. We post on our website any amendments to our Corporate Governance Guidelines, and we intend to satisfy any disclosure requirements that may arise under Form 8-K relating to these amendments through such postings. Additionally, this material is available in print, free of charge, to any person who requests the information. Persons wishing to obtain this printed material should submit a request to Corporate Secretary, c/o Enbridge Energy Management, L.L.C., 1100 Louisiana, Suite 3300, Houston, TX 77002.
24
AUDIT, FINANCE & RISK COMMITTEE
Enbridge Management has an Audit, Finance & Risk Committee, referred to as the Audit Committee, comprised of four board members who are independent as the term is used in Section 10A of the Exchange Act. None of these members are relying upon any exemptions from the foregoing independence requirements. The members of the Audit Committee are Jeffrey A. Connelly, Dan A. Westbrook, Martha O. Hesse and J. Herbert England. George K. Petty resigned as a Director and as a member of the Audit Committee on January 19, 2011 and J. Herbert England was elected to fill the Audit Committee vacancy on January 28, 2011. The Audit Committee provides independent oversight with respect to our internal controls, accounting policies, financial reporting, internal audit function and the report of the independent registered public accounting firm. The Audit Committee also reviews the scope and quality, including the independence and objectivity, of the independent and internal auditors and the fees paid for both audit and non-audit work and makes recommendations concerning audit matters, including the engagement of the independent auditors, to the board of directors.
The charter of the Audit Committee is available on our website at www.enbridgemanagement.com. The charter of the Audit Committee complies with the listing standards of the NYSE currently applicable to us. This material is available in print, free of charge, to any person who requests the information. Persons wishing to obtain this printed material should submit a request to Corporate Secretary, c/o Enbridge Energy Management, L.L.C., 1100 Louisiana Street, Suite 3300, Houston, TX 77002.
Enbridge Management’s board of directors has determined that Jeffrey A. Connelly, Martha O. Hesse and J. Herbert England qualify as “Audit Committee financial experts” as defined in Item 407(d)(5)(ii) of Regulation S-K. Each of the members of the Audit, Finance and Risk Committee is independent as defined by Section 303A of the listing standards of the NYSE.
Mr. Petty served on the Audit Committees of the General Partner and Enbridge Management, FuelCell Energy, Inc. and Enbridge Inc. In compliance with the provisions of the Audit, Finance & Risk Committee Charter, the boards of directors of the General Partner and of Enbridge Management determined that Mr. Petty’s simultaneous service on such audit committees did not impair his ability to effectively serve on the Audit, Finance & Risk Committee.
Mr. England serves on the Audit Committees of the General Partner and Enbridge Management, FuelCell Energy, Inc. and Enbridge Inc. In compliance with the provisions of the Audit, Finance & Risk Committee Charter, the boards of directors of the General Partner and of Enbridge Management determined that Mr. England’s simultaneous service on such audit committees does not impair his ability to effectively serve on the Audit, Finance & Risk Committee.
Enbridge Management’s Audit Committee has established procedures for the receipt, retention and treatment of complaints we receive regarding accounting, internal accounting controls or auditing matters and the confidential, anonymous submission by our employees of concerns regarding questionable accounting or auditing matters. Persons wishing to communicate with our Audit Committee may do so by writing in care of Chairman, Audit Committee, c/o Enbridge Energy Management, L.L.C., 1100 Louisiana Street, Suite 3300, Houston, TX 77002.
EXECUTIVE SESSIONS OF NON-MANAGEMENT DIRECTORS
The independent directors of Enbridge Management meet at regularly scheduled executive sessions without management. Martha O. Hesse serves as the presiding director at those executive sessions. Persons wishing to communicate with the Company’s independent directors may do so by writing in care of Chairman, Board of Directors, Enbridge Energy Management, L.L.C., 1100 Louisiana, Suite 3300, Houston, TX 77002.
25
Item 11. Executive Compensation
We do not directly employ any of the individuals responsible for managing or operating our business. We obtain managerial, administrative and operational services from the General Partner and Enbridge pursuant to service agreements among us, the General Partner and other affiliates of Enbridge. Pursuant to these service agreements, the Partnership has agreed to reimburse the General Partner and affiliates of Enbridge for the cost of managerial, administrative, operational and director services they provide to us.
The discussion of executive compensation for the Partnership is found in “Part III, Item 11” of the Partnership’s 10-K, which is hereby incorporated by reference as the Partnership reimburses a portion of the compensation of our directors and officers for the services they provide to us, the General Partner and the Partnership.
The compensation policies and philosophy of Enbridge govern the types and amount of compensation of the Named Executive Officers, or NEOs. Since these policies and philosophy are those of Enbridge, we also refer you to a discussion of those items as set forth in the Executive Compensation section of the Enbridge “Management Information Circular,” or MIC, on the Enbridge website at www.enbridge.com. The Enbridge MIC is produced by Enbridge pursuant to Canadian securities regulations and is not incorporated into this document by reference or deemed furnished or filed by us under the Exchange Act; rather the reference is to provide our investors with an understanding of the compensation policies and philosophy of the ultimate parent of the General Partner.
26
Item 12. Security Ownership of Certain Beneficial Owners and Management
SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS
The following table sets forth information as of February 18, 2011, unless otherwise noted, with respect to persons known by Enbridge Management to be the beneficial owners of more than five percent of our Listed shares:
| Listed Shares(1) | ||||||||
| Name and Address of Beneficial Owner |
Number of shares |
Percent of Class | ||||||
| Enbridge Energy Company, Inc.(1)(2) |
3,087,629 | 17.2 | ||||||
| 1100 Louisiana, Suite 3300 Houston, TX 77002 |
||||||||
| Kayne Anderson Capital Advisors, L.P.(3) |
3,709,942 | 21.4 | ||||||
| 1800 Avenue of the Stars, Second Floor Los Angeles, CA 90067 |
||||||||
| Neuberger Berman Group, L.L.C.(4) |
1,554,432 | 9.0 | ||||||
| 605 Third Avenue New York, NY 10158 |
||||||||
| (1) | As of February 18, 2011, there were 17,928,168 Listed Shares issued and outstanding. In all cases we will vote, or refrain from voting, the Partnership’s i-units that we own in the manner that the owners of our shares, including our voting shares, vote, or refrain from voting, their shares through the provisions in the Partnership’s partnership agreement and our limited liability company agreement. The number of our outstanding shares and the number of the Partnership’s i-units will at all times be equal. |
| (2) | The General Partner also owns 100% of our voting shares, which are not Listed Shares. |
| (3) | Kayne Anderson Capital Advisors, L.P. and Richard A. Kayne reported shared voting power and shared dispositive power with respect to all of such shares in its amendment to its Schedule 13G, filed February 9, 2011. Kayne Anderson Capital Advisors, L.P. disclaims beneficial ownership of the securities reported, except those attributable to it by virtue of its general partner interests in the limited partnerships. Mr. Kayne disclaims beneficial ownership of the securities reported, except those held by him or attributable to him by virtue of his limited partnership interests in the limited partnerships, his indirect interest in the interest of Kayne Anderson Capital Advisors, L.P. in the limited partnerships and his ownership of common stock of the registered investment company. |
| (4) | Neuberger Berman Group L.L.C. reported sole voting power as to 1,481,639 shares and shared dispositive power as to 1,554,432 shares in its amendment to its Schedule 13G, filed February 14, 2011. |
We do not have any shares that have been approved for issuance under an equity compensation plan.
27
SECURITY OWNERSHIP OF MANAGEMENT AND DIRECTORS
The following table sets forth information as of February 18, 2011, regarding the beneficial ownership of our Listed Shares by all directors and executive officers of Enbridge Management.
|
Enbridge Energy Management, L.L.C. |
Enbridge Energy Partners, L.P. |
|||||||||||||||||||
| Name |
Title of Class |
Number
of Shares(1) |
Percent of Class |
Title of Class |
Amount and Nature of Beneficial Ownership(1) |
Percent of Class |
||||||||||||||
| Martha O. Hesse(5) |
Listed Shares | 23,783 | — | Class A common units | — | — | ||||||||||||||
| Jeffrey A. Connelly(6) |
Listed Shares | — | — | Class A common units | 9,000 | * | ||||||||||||||
| J. Herbert England |
Listed Shares | — | — | Class A common units | 3,938 | * | ||||||||||||||
| George K. Petty(2) |
Listed Shares | 4,053 | * | Class A common units | 3,300 | * | ||||||||||||||
| Dan A. Westbrook(3) |
Listed Shares | — | — | Class A common units | 10,500 | * | ||||||||||||||
| Mark A. Maki |
Listed Shares | 1,094 | * | Class A common units | 1,500 | * | ||||||||||||||
| Terrance L. McGill |
Listed Shares | 1,923 | * | Class A common units | 4,000 | * | ||||||||||||||
| Al Monaco |
Listed Shares | — | — | Class A common units | — | — | ||||||||||||||
| Stephen J. Wuori |
Listed Shares | — | — | Class A common units | — | — | ||||||||||||||
| Stephen J.J. Letwin(4) |
Listed Shares | — | — | Class A common units | 22,434 | * | ||||||||||||||
| Richard L. Adams |
Listed Shares | — | — | Class A common units | — | — | ||||||||||||||
| Janet L. Coy |
Listed Shares | — | — | Class A common units | — | — | ||||||||||||||
| E. Chris Kaitson |
Listed Shares | — | — | Class A common units | — | — | ||||||||||||||
| Douglas V. Krenz |
Listed Shares | — | — | Class A common units | — | — | ||||||||||||||
| John A. Loiacono |
Listed Shares | — | — | Class A common units | 1,000 | * | ||||||||||||||
| Susan E. Miller |
Listed Shares | — | — | Class A common units | — | — | ||||||||||||||
| Byron C. Neiles |
Listed Shares | — | — | Class A common units | — | — | ||||||||||||||
| Stephen J. Neyland |
Listed Shares | — | — | Class A common units | — | — | ||||||||||||||
| Kerry C. Puckett |
Listed Shares | — | — | Class A common units | 1,000 | * | ||||||||||||||
| William M. Ramos |
Listed Shares | — | — | Class A common units | — | — | ||||||||||||||
| Allan M. Schneider |
Listed Shares | — | — | Class A common units | — | — | ||||||||||||||
| Bruce A. Stevenson |
Listed Shares | — | — | Class A common units | — | — | ||||||||||||||
| David K. Wudrick |
Listed Shares | — | — | Class A common units | — | — | ||||||||||||||
| Leon A. Zupan |
Listed Shares | — | — | Class A common units | — | — | ||||||||||||||
| All Officers, directors and nominees as a group (24 persons) |
Listed Shares | 30,853 | * | Class A common units | 56,672 | * | ||||||||||||||
| * | Less than one percent. |
| (1) | Unless otherwise indicated, each beneficial owner has sole voting and investment power with respect to all of the Class A common units or Listed Shares attributed to him or her. |
| (2) | Of the 3,300 Class A common units deemed beneficially owned by Mr. Petty, 683 of such Class A common units are held in an account of his aunt, for which Mr. Petty has been granted power-of-attorney to effect trades. Of the 4,053 Listed Shares deemed beneficially owned by Mr. Petty, 1,111 Listed Shares are held in each of two Uniform Gifts to Minors Act custodial accounts for the benefit of two granddaughters and 486 Listed Shares are held in a Uniform Gifts to Minors Act custodial account for the benefit of his grandson. Mr. Petty is the custodian for each such account. |
| (3) | Of the 10,500 Class A common units deemed beneficially owned by Mr. Westbrook, 8,000 Class A common units are held by The Westbrook Trust, for which Mr. Westbrook is the trustee and beneficiary, and 2,500 Class A common units are held by the Mary Ruth Trust, for which Mr. Westbrook is one of the trustees, along with his mother, who is also the beneficiary. |
| (4) | Of the 22,434 Class A common units deemed beneficially owned by Mr. Letwin, 7,434 Class A common units are owned by Mr. Letwin’s spouse. |
| (5) | Of the 23,783 Listed Shares deemed beneficially owned by Ms. Hesse, 23,783 Listed Shares are held in an Individual Retirement Account established for her benefit. |
| (6) | Of the 9,000 Class A common units deemed beneficially owned by Mr. Connelly, 9,000 Class A common units are held in the Susan K. Connelly Family Trust of which Mr. Connelly is the trustee and a beneficiary. |
28
Item 13. Certain Relationships and Related Transactions, and Director Independence
MANAGEMENT ARRANGEMENTS AND RELATED AGREEMENTS
Under the delegation of control agreement, the General Partner delegated, and we assumed, all of the General Partner’s power and authority to manage the business and affairs of the Partnership and its subsidiaries subject to certain approval rights retained by the General Partner.
The Partnership has agreed to reimburse us under the delegation of control agreement for any direct and indirect expenses we incur to the same extent as it does with respect to the General Partner as general partner. In addition, the Partnership will reimburse us for any Texas franchise taxes and any other foreign, state and local taxes not otherwise paid or reimbursed pursuant to the tax indemnification agreement between Enbridge and us. The Partnership has also agreed to indemnify and protect us and our respective officers and directors in performing these management and control functions to the same extent as it does with respect to the General Partner as general partner.
For the years ended December 31, 2010, 2009 and 2008, all expenses in connection with our management of the business and affairs of the Partnership were paid by the Partnership.
Because we do not have employees, we have entered into various service agreements with Enbridge and certain of its subsidiaries to fulfill our obligations under the delegation of control agreement and the agency agreement. These service agreements allow us to obtain from Enbridge and its subsidiaries various administrative, operational, technical and professional services and the use of related personnel. The Partnership directly reimburses Enbridge and its subsidiaries for the actual amount of direct and indirect expenses they incur and payments they make on our behalf in connection with the services and personnel provided to us. In other cases, Enbridge allocates to its affiliates an agreed percentage of the total expenses with respect to a particular type of service provided by Enbridge to all of its affiliates and us. In either case, the Partnership pays directly or reimburses us for any amounts that we incur under the service agreements. The service agreements also provide that Enbridge and its affiliates will indemnify us for certain losses and defend us against certain claims in connection with providing or failing to provide the agreed services. Similarly, we have agreed to indemnify Enbridge and its affiliates for certain losses and defend them against certain claims as a result of their provision of the agreed services.
For the years ended December 31, 2010, 2009 and 2008, expenses for services and personnel provided under the services agreements were paid by the Partnership.
SUPPORTIVE ARRANGEMENTS WITH ENBRIDGE
In connection with our initial public offering in October 2002, we entered into a tax indemnification agreement and purchase provisions with Enbridge. Under the tax indemnification agreement, Enbridge has agreed to indemnify us for any tax liability attributable to our formation, our management of the business and affairs of the Partnership and for any taxes arising out of a transaction involving the i-units we own to the extent the transaction does not generate sufficient cash to pay our taxes with respect to such transaction. Under the purchase provisions, Enbridge has the right to purchase our outstanding Listed Shares in connection with certain significant events involving the Partnership and also whenever Enbridge owns more than 80% of our outstanding Listed Shares. We paid Enbridge $500,000 in consideration of its obligations under the tax indemnification agreement and purchase provisions.
CONFLICTS OF INTEREST AND FIDUCIARY DUTIES
Conflicts of interest may arise because of the relationship among Enbridge, the General Partner, the Partnership and us. Our directors and officers have fiduciary duties to manage our business in a manner beneficial to us and to the holders of our shares. However, these fiduciary duties have been modified pursuant to
29
the terms of our limited liability company agreement. Some of our directors and officers are also directors and officers of Enbridge and the General Partner and have fiduciary duties to manage the business of Enbridge or the General Partner and the Partnership in a manner beneficial to Enbridge and its shareholders or the General Partner, the Partnership and their respective shareholders or unitholders, as the case may be. Furthermore, through its ownership of our voting shares, the General Partner has the sole power to elect all of our directors. The resolution of these conflicts of interest may not always be in our best interest or in the best interest of our shareholders.
SECURITY OWNERSHIP AND DISTRIBUTIONS
In connection with our formation on May 14, 2002, we issued the General Partner one voting share in consideration of the General Partner’s initial contribution to us. In connection with our initial public offering on October 17, 2002, the General Partner acquired 1,550,000 of our Listed Shares at a price of $39.00 per share. We make quarterly share distributions pursuant to the provisions of our limited liability company agreement as described in Part II, Item 5 of this Annual Report. At February 18, 2011, the General Partner owned approximately 3,087,629 or approximately 17.2 percent, of our Listed Shares and 1.99, or 100 percent, of our voting shares.
At February 18, 2011, we owned 17,928,170 i-units, representing all of the outstanding i-units and an approximate 13.9% limited partner interest in the Partnership. For further discussion of ownership and distributions as they pertain to the Partnership, please read “Part III, Item 13. Certain Relationships and Related Transactions, and Director Independence” of the Partnership’s 10-K, which is hereby incorporated by reference.
OTHER RELATIONSHIPS AND RELATED TRANSACTIONS OF THE PARTNERSHIP
For a discussion of other relationships and related transactions as they pertain to the Partnership, please read “Part III, Item 13. Certain Relationships and Related Transactions, and Director Independence” of the Partnership’s 10-K, which is hereby incorporated by reference.
30
Item 14. Principal Accountant Fees and Services
The following table sets forth the aggregate fees billed for professional services rendered by PricewaterhouseCoopers LLP, Enbridge Management’s principal independent auditors, for each of our last two fiscal years.
| For the years ended December 31, | ||||||||
| 2010 | 2009 | |||||||
| Audit fees(1) |
$ | 83,000 | $ | 60,000 | ||||
| Audit related fees |
— | — | ||||||
| Tax fees |
— | — | ||||||
| All other fees |
— | — | ||||||
| Total |
$ | 83,000 | $ | 60,000 | ||||
| (1) | Audit fees consist of fees billed for professional services rendered for the audit of the financial statements and review of the interim financial statements. |
Engagements for services provided by PricewaterhouseCoopers LLP are subject to pre-approval by the Audit, Finance & Risk Committee of our Board of Directors; however services up to $50,000 may be approved by the Chairman of the Audit, Finance & Risk Committee, under authority of our Board of Directors. All services in 2010 and 2009 were approved by the Audit, Finance & Risk Committee.
All fees, including the amounts shown above, that are billed by PricewaterhouseCoopers LLP for services rendered are paid by the Partnership on behalf of Enbridge Management.
PART IV
Item 15. Exhibits and Financial Statement Schedules
The following documents are filed as a part of this report:
(1) Financial Statements, which are incorporated by reference in Item 8 are included beginning on page F-1
| a. | Report of PricewaterhouseCoopers LLP, Independent Registered Public Accounting Firm. |
| b. | Statements of Income for each of the years ended December 31, 2010, 2009 and 2008. |
| c. | Statements of Comprehensive Income for each of the years ended December 31, 2010, 2009 and 2008. |
| d. | Statements of Cash Flows for each of the years ended December 31, 2010, 2009 and 2008. |
| e. | Statements of Financial Position as of December 31, 2010 and 2009. |
| f. | Statements of Shareholders’ Equity for each of the years ended December 31, 2010, 2009 and 2008. |
| g. | Notes to the Financial Statements. |
(2) Financial Statement Schedules.
All schedules have been omitted because they are not applicable, any required information is shown in the Financial Statements or Notes thereto or the required information is immaterial.
(3) Exhibits.
Reference is made to the “Index of Exhibits” following the signature page, which is hereby incorporated into this Item.
31
Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.
| ENBRIDGE ENERGY MANAGEMENT, L.L.C. (Registrant) | ||||
| By: |
/S/ MARK A. MAKI | |||
| Mark A. Maki | ||||
| Date: February 18, 2011 |
(President) | |||
Pursuant to the requirements of the Securities Exchange Act of 1934, this report has been signed below on February18, 2011 by the following persons on behalf of the registrant and in the capacities indicated.
| /S/ MARK A. MAKI |
/S/ TERRANCE L. MCGILL | |
| Mark A. Maki President and Director (Principal Executive Officer) |
Terrance L. McGill President of General Partner and Director | |
| /S/ STEPHEN J. WUORI |
/S/ AL MONACO | |
| Stephen J. Wuori Executive Vice President—Liquids Pipelines and Director |
Al Monaco Director | |
| /S/ STEPHEN J. NEYLAND |
/S/ WILLIAM M. RAMOS | |
| Stephen J. Neyland Vice President—Finance (Principal Financial Officer) |
William M. Ramos Controller | |
| /S/ JEFFREY A. CONNELLY |
/S/ J. HERBERT ENGLAND | |
| Jeffrey A. Connelly Director |
J. Herbert England Director | |
| /S/ MARTHA O. HESSE |
/S/ DAN A. WESTBROOK | |
| Martha O. Hesse Director |
Dan A. Westbrook Director | |
32
INDEX TO EXHIBITS
Each exhibit identified below is filed as a part of this annual report. Exhibits included in this filing are designated by an asterisk (“*”); all exhibits not so designated are incorporated by reference to a prior filing as indicated. Exhibits designated with a “+” constitute a management contract or compensatory plan arrangement required to be filed as an exhibit to this report pursuant to Item 15(c) of Form 10-K.
| Exhibit |
Description | |
| 3.1 | Certificate of Formation of Enbridge Energy Management, L.L.C. (incorporated by reference to Exhibit 3.1 of Enbridge Management’s Registration Statement on Form S-1 filed on May 31, 2002). | |
| 3.2 | Amended and Restated Limited Liability Company Agreement of Enbridge Energy Management, L.L.C. (including Purchase Provisions adopted by Enbridge) (incorporated by reference to Exhibit 3.2 of Enbridge Management’s Quarterly Report on Form 10-Q filed on November 25, 2002). | |
| 3.3 | Amendment to Amended and Restated Limited Liability Company Agreement of Enbridge Energy Management, L.L.C. (incorporated by reference to Exhibit 3.3 to Enbridge Management’s Quarterly Report on Form 10-Q filed on April 30, 2007). | |
| 10.1 | Tax Indemnification Agreement (incorporated by reference to Exhibit 10.1 of Enbridge Management’s Quarterly Report on Form 10-Q filed on November 25, 2002). | |
| 10.2 | Delegation of Control Agreement (incorporated by reference to Exhibit 10.2 of Enbridge Management’s Quarterly Report on Form 10-Q filed on November 25, 2002). | |
| 10.3 | First Amending Agreement to the Delegation of Control Agreement dated October 17, 2002 (incorporated by reference to Exhibit 10.1 of Enbridge Management’s Quarterly Report on Form 10-Q filed on May 5, 2005). | |
| 10.4 | Amended and Restated Treasury Services Agreement (incorporated by reference to Exhibit 10.3 of Enbridge Management’s Quarterly Report on Form 10-Q filed on November 25, 2002). | |
| 10.5 | Operational Services Agreement (incorporated by reference to Exhibit 10.4 of Enbridge Management’s Quarterly Report on Form 10-Q filed on November 25, 2002). | |
| 10.6 | General and Administrative Services Agreement (incorporated by reference to Exhibit 10.5 of Enbridge Management’s Quarterly Report on Form 10-Q filed on November 25, 2002). | |
| 10.7+ | Executive Employment Agreement between Stephen J.J. Letwin and Enbridge Inc. dated April 14, 2003 (incorporated by reference to Exhibit 10.1 of the Partnership’s Current Report on Form 8-K filed on May 3, 2006). | |
| 10.8+ | Executive Employment Agreement between Stephen J. Wuori and Enbridge Inc. dated April 14, 2003 (incorporated by reference to Exhibit 10.1 of the Partnership’s Current Report on Form 8-K filed on January 28, 2008). | |
| 10.9+ | Executive Employment Agreement between E. Chris Kaitson, as Executive, and Enbridge Inc., as Corporation dated May 11, 2001 (incorporated by reference to Exhibit 10.27 of the Partnership’s Annual Report on Form 10-K filed on March 28, 2003). | |
| 14.1 | Code of Ethics for Senior Financial Officers (incorporated by reference to Exhibit 14.1 of Enbridge Management’s Annual Report on Form 10-K filed on March 12, 2004). | |
| 31.1* | Certification of Chief Executive Officer Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002. | |
| 31.2* | Certification of Chief Financial Officer Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002. | |
| 32.1* | Certification of Chief Executive Officer Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002. | |
| 32.2* | Certification of Chief Financial Officer Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002. | |
| 99.1 | Charter for the Audit, Finance & Risk Committee of Enbridge Energy Management, L.L.C. (incorporated by reference to Exhibit 99.1 of Enbridge Management’s Annual Report on Form 10-K filed on February 25, 2005.) | |
| 99.2* | Enbridge Energy Partners, L.P. Annual Report on Form 10-K for the year ended December 31, 2010. |
Copies of Exhibits may be obtained upon written request of any shareholder to Investor Relations, Enbridge Energy Management, L.L.C., 1100 Louisiana Street, Suite 3300, Houston, Texas 77002.
33
INDEX TO FINANCIAL STATEMENTS AND
FINANCIAL STATEMENT SCHEDULES
ENBRIDGE ENERGY MANAGEMENT, L.L.C.
FINANCIAL STATEMENT SCHEDULES
Financial statement schedules not included in this report have been omitted because they are not applicable or the required information is either immaterial or shown in the financial statements or notes thereto.
F-1
Report of Independent Registered Public Accounting Firm
To the Board of Directors and Shareholders of Enbridge Energy Management, L.L.C.:
In our opinion, the accompanying statements of financial position and the related statements of income and comprehensive income, of shareholders’ equity and of cash flows present fairly, in all material respects, the financial position of Enbridge Energy Management, L.L.C. (the “Company”) at December 31, 2010 and 2009, and the results of their operations and their cash flows for each of the three years in the period ended December 31, 2010 in conformity with accounting principles generally accepted in the United States of America. Also in our opinion, the Company maintained, in all material respects, effective internal control over financial reporting as of December 31, 2010, based on criteria established in Internal Control—Integrated Framework issued by the Committee of Sponsoring Organizations of the Treadway Commission (COSO). The Company’s management is responsible for these financial statements, for maintaining effective internal control over financial reporting and for its assessment of the effectiveness of internal control over financial reporting, included in Management’s Report on Internal Control Over Financial Reporting appearing under Item 9A. Our responsibility is to express opinions on these financial statements and on the Company’s internal control over financial reporting based on our integrated audits. We conducted our audits in accordance with the standards of the Public Company Accounting Oversight Board (United States). Those standards require that we plan and perform the audits to obtain reasonable assurance about whether the financial statements are free of material misstatement and whether effective internal control over financial reporting was maintained in all material respects. Our audits of the financial statements included examining, on a test basis, evidence supporting the amounts and disclosures in the financial statements, assessing the accounting principles used and significant estimates made by management, and evaluating the overall financial statement presentation. Our audit of internal control over financial reporting included obtaining an understanding of internal control over financial reporting, assessing the risk that a material weakness exists, and testing and evaluating the design and operating effectiveness of internal control based on the assessed risk. Our audits also included performing such other procedures as we considered necessary in the circumstances. We believe that our audits provide a reasonable basis for our opinions.
A company’s internal control over financial reporting is a process designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles. A company’s internal control over financial reporting includes those policies and procedures that (i) pertain to the maintenance of records that, in reasonable detail, accurately and fairly reflect the transactions and dispositions of the assets of the company; (ii) provide reasonable assurance that transactions are recorded as necessary to permit preparation of financial statements in accordance with generally accepted accounting principles, and that receipts and expenditures of the company are being made only in accordance with authorizations of management and directors of the company; and (iii) provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use, or disposition of the company’s assets that could have a material effect on the financial statements.
Because of its inherent limitations, internal control over financial reporting may not prevent or detect misstatements. Also, projections of any evaluation of effectiveness to future periods are subject to the risk that controls may become inadequate because of changes in conditions, or that the degree of compliance with the policies or procedures may deteriorate.
PricewaterhouseCoopers LLP
Houston, Texas
February 18, 2011
F-2
ENBRIDGE ENERGY MANAGEMENT, L.L.C.
STATEMENTS OF INCOME
| For the year ended December 31, | ||||||||||||
| 2010 | 2009 | 2008 | ||||||||||
| (in millions, except per share amounts) | ||||||||||||
| Equity income (loss) from investment in Enbridge Energy Partners, L.P. |
$ | (38.2 | ) | $ | 35.0 | $ | 51.8 | |||||
| Loss on issuance of units by Enbridge Energy Partners, L.P. (Note 4) |
— | — | (13.3 | ) | ||||||||
| Income (loss) before income tax expense |
(38.2 | ) | 35.0 | 38.5 | ||||||||
| Income tax expense (benefit) (Note 6) |
(14.5 | ) | 13.2 | 14.3 | ||||||||
| Net income (loss) |
$ | (23.7 | ) | $ | 21.8 | $ | 24.2 | |||||
| Net income (loss) per share, basic and diluted |
$ | (1.39 | ) | $ | 1.39 | $ | 1.72 | |||||
| Weighted average shares outstanding |
17.0 | 15.7 | 14.1 | |||||||||
The accompanying notes are an integral part of these financial statements.
F-3
ENBRIDGE ENERGY MANAGEMENT, L.L.C.
STATEMENTS OF COMPREHENSIVE INCOME
| For the year ended December 31, | ||||||||||||
| 2010 | 2009 | 2008 | ||||||||||
| (in millions) | ||||||||||||
| Net income (loss) |
$ | (23.7 | ) | $ | 21.8 | $ | 24.2 | |||||
| Equity in other comprehensive income (loss) of Enbridge Energy Partners, L.P., net of tax benefit (expense) of $2.4, $4.4 and $(16.1), respectively |
(4.3 | ) | (7.1 | ) | 27.8 | |||||||
| Comprehensive income (loss) |
$ | (28.0 | ) | $ | 14.7 | $ | 52.0 | |||||
The accompanying notes are an integral part of these financial statements.
F-4
ENBRIDGE ENERGY MANAGEMENT, L.L.C.
STATEMENTS OF CASH FLOWS
| For the year ended December 31, | ||||||||||||
| 2010 | 2009 | 2008 | ||||||||||
| (in millions) | ||||||||||||
| Cash flows from operating activities |
||||||||||||
| Net income (loss) |
$ | (23.7 | ) | $ | 21.8 | $ | 24.2 | |||||
| Adjustments to reconcile net income to net cash flows from operating activities: |
||||||||||||
| Equity (income) loss from investment in Enbridge Energy Partners, L.P. |
38.2 | (35.0 | ) | (51.8 | ) | |||||||
| Loss on issuance of units by Enbridge Energy Partners, L.P. (Note 4) |
— | — | 13.3 | |||||||||
| Changes in operating assets and liabilities, net of cash acquired: |
||||||||||||
| Deferred income taxes (Note 6) |
(14.5 | ) | 13.2 | 14.3 | ||||||||
| Net cash flows from operating activities |
— | — | — | |||||||||
| Net cash flows from investing activities |
— | — | — | |||||||||
| Net cash flows from financing activities |
— | — | — | |||||||||
| Net change in cash and cash equivalents |
— | — | — | |||||||||
| Cash and cash equivalents at beginning of year |
— | — | — | |||||||||
| Cash and cash equivalents at end of period |
$ | — | $ | — | $ | — | ||||||
The accompanying notes are an integral part of these financial statements.
F-5
ENBRIDGE ENERGY MANAGEMENT, L.L.C.
STATEMENTS OF FINANCIAL POSITION
| December 31, | ||||||||
| 2010 | 2009 | |||||||
| (dollars in millions) | ||||||||
| ASSETS | ||||||||
| Due from affiliates |
$ | 0.1 | $ | 0.1 | ||||
| Investment in Enbridge Energy Partners, L.P. |
551.4 | 567.8 | ||||||
| $ | 551.5 | $ | 567.9 | |||||
| LIABILITIES AND SHAREHOLDERS’ EQUITY | ||||||||
| Due to affiliates |
$ | 0.1 | $ | 0.1 | ||||
| Deferred income tax liability (Note 6) |
80.8 | 87.1 | ||||||
| 80.9 | 87.2 | |||||||
| Commitments and contingencies |
||||||||
| Shareholders’ equity (Note 3) |
||||||||
| Voting shares-unlimited authorized; 1.96 and 1.82 issued and outstanding at December 31, 2010 and 2009, respectively |
— | — | ||||||
| Listed shares-unlimited authorized; 17,642,709 and 16,388,865 issued and outstanding at December 31, 2010 and 2009, respectively |
748.5 | 662.3 | ||||||
| Accumulated deficit |
(260.5 | ) | (168.5 | ) | ||||
| Accumulated other comprehensive income (loss) |
(17.4 | ) | (13.1 | ) | ||||
| 470.6 | 480.7 | |||||||
| $ | 551.5 | $ | 567.9 | |||||
The accompanying notes are an integral part of these financial statements.
F-6
ENBRIDGE ENERGY MANAGEMENT, L.L.C.
STATEMENTS OF SHAREHOLDERS’ EQUITY
| For the year ended December 31, | ||||||||||||||||||||||||
| 2010 | 2009 | 2008 | ||||||||||||||||||||||
| Shares | Amount | Shares | Amount | Shares | Amount | |||||||||||||||||||
| (in millions, except share amounts) | ||||||||||||||||||||||||
| Voting shares |
||||||||||||||||||||||||
| Beginning balance |
1.82 | $ | — | 1.64 | $ | — | 1.51 | $ | — | |||||||||||||||
| Share distributions (Note 3) |
0.14 | — | 0.18 | — | 0.13 | — | ||||||||||||||||||
| Ending balance |
1.96 | — | 1.82 | — | 1.64 | — | ||||||||||||||||||
| Listed shares |
||||||||||||||||||||||||
| Beginning balance |
16,388,865 | 662.3 | 14,763,053 | 601.2 | 13,564,084 | 547.0 | ||||||||||||||||||
| Capital account adjustments |
— | 17.9 | — | — | ||||||||||||||||||||
| Share distributions (Note 3) |
1,253,844 | 68.3 | 1,625,812 | 61.1 | 1,198,969 | 54.2 | ||||||||||||||||||
| Ending balance |
17,642,709 | 748.5 | 16,388,865 | 662.3 | 14,763,053 | 601.2 | ||||||||||||||||||
| Accumulated deficit |
||||||||||||||||||||||||
| Beginning balance |
(168.5 | ) | (129.2 | ) | (99.2 | ) | ||||||||||||||||||
| Net income (loss) |
(23.7 | ) | 21.8 | 24.2 | ||||||||||||||||||||
| Share distributions (Note 3) |
(68.3 | ) | (61.1 | ) | (54.2 | ) | ||||||||||||||||||
| Ending balance |
(260.5 | ) | (168.5 | ) | (129.2 | ) | ||||||||||||||||||
| Accumulated other comprehensive income (loss) |
||||||||||||||||||||||||
| Beginning balance |
(13.1 | ) | (6.0 | ) | (33.8 | ) | ||||||||||||||||||
| Equity in other comprehensive income (loss) of Enbridge Energy Partners, L.P. |
(4.3 | ) | (7.1 | ) | 27.8 | |||||||||||||||||||
| Ending balance |
(17.4 | ) | (13.1 | ) | (6.0 | ) | ||||||||||||||||||
| Total shareholders’ equity |
$ | 470.6 | $ | 480.7 | $ | 466.0 | ||||||||||||||||||
The accompanying notes are an integral part of these financial statements.
F-7
ENBRIDGE ENERGY MANAGEMENT, L.L.C.
NOTES TO THE FINANCIAL STATEMENTS
1. GENERAL
Enbridge Energy Management, L.L.C., referred to herein as “we,” “us,” “our,” the “Company,” or “Enbridge Management,” is a publicly traded Delaware limited liability company that was formed on May 14, 2002. Our listed shares, or “Listed Shares,” are traded on the New York Stock Exchange, or NYSE, under the symbol “EEQ.” We are a limited partner of Enbridge Energy Partners, L.P., which we also refer to as the Partnership, through our ownership of i-units, a special class of the Partnership’s limited partner interests. The Partnership’s Class A common units are traded on the NYSE under the symbol “EEP.” By agreement with the Partnership and its general partner, Enbridge Energy Company, Inc., or the General Partner, we manage the Partnership’s business and affairs. The General Partner is an indirect, wholly-owned subsidiary of Enbridge Inc., a leading energy transportation and distribution company located in Calgary, Alberta, Canada, which we refer to as Enbridge. The General Partner owns 1.96, or 100 percent, of our voting shares, as well as 3,038,467, or 17.2 percent, of our Listed Shares, while the remaining 14,604,242 or 82.8 percent, of our Listed Shares were held by the public at December 31, 2010.
2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
We prepare our financial statements in accordance with accounting principles generally accepted in the United States of America. Our preparation of these financial statements requires us to make estimates and assumptions that affect the reported amount of assets, liabilities, revenues and expenses, and the disclosure of contingent assets and liabilities. We regularly evaluate these estimates utilizing historical experience, consultation with experts and other methods we consider reasonable under the circumstances. Nevertheless, actual results may differ significantly from these estimates. We record the effect of any revisions to these estimates in our financial statements in the period in which the facts that give rise to the revision become known.
Accounting for Investment in the Partnership
We use the equity method of accounting for our ownership in the Partnership because we exercise significant influence over the Partnership pursuant to a delegation of control agreement among the General Partner, the Partnership and us. Our share of earnings of the Partnership is recorded in the period in which it is earned. As of December 31, 2010 and 2009, we owned approximately 13.7 percent and 13.6 percent of the Partnership, respectively.
Capital Account Adjustments on Issuances of Common Units by the Partnership
The Partnership records an adjustment to the carrying value of its book capital accounts when it issues additional common units and the new issuance price per unit is greater than or less than the average cost per unit for each class of units. We refer to these adjustments as capital account adjustments. Beginning January 1, 2009, in conjunction with our adoption of the authoritative accounting guidance for noncontrolling interests, we recognize any capital account adjustments recorded by the Partnership to the book capital account it maintains for our i-units by increasing or decreasing our investment in the Partnership and recording a corresponding capital account adjustment directly to “Shareholders’ equity” on our statement of financial position. We adopted prospectively the applicable authoritative guidance, except for any relevant presentation and disclosure requirements. Prior to our adoption of this guidance, we historically recognized the capital account adjustment recorded by the Partnership to the book capital account it maintains for our i-units by increasing or decreasing
F-8
our investment in the Partnership and recording a corresponding gain or loss in our statement of income. Gain or loss recognition is an accounting convention we have historically applied as our method of recognizing these capital account adjustments made by the Partnership.
Net Income Per Share
Both basic and diluted earnings per share are computed based on the weighted-average number of our shares outstanding during each period. We have no securities outstanding that may be converted into or exercised for our shares.
Income Taxes
We are a limited liability company that has elected to be treated as a corporation for federal income tax purposes. We recognize deferred income tax assets and liabilities for temporary differences between the basis of our assets and liabilities for financial reporting and tax purposes. We recognize the tax effects of any uncertain tax positions we have taken as the largest amount that is greater than 50 percent likely of being realized upon ultimate settlement with a taxing authority having full knowledge of the position and all relevant facts, but without considering time values. Changes in tax legislation are included in the relevant computations in the period in which the legislation is enacted. Currently, the only temporary difference (and associated deferred tax expense) results from recording our equity in the earnings of the Partnership which will not become taxable until the Partnership is liquidated, or the i-units are otherwise monetized.
We are a party to a tax indemnification agreement with Enbridge. Pursuant to this tax indemnification agreement, Enbridge agrees to indemnify us from any tax liability attributable to our formation or our management of the business and affairs of the Partnership, and from any taxes arising out of a transaction involving the i-units owned, to the extent the transaction does not generate sufficient cash to pay our taxes with respect to such transaction, in each case, other than any Texas franchise taxes and other capital-based foreign, state or local taxes that are required to be paid or reimbursed by the Partnership under the delegation of control agreement.
The delegation of control agreement states that the General Partner bears the economic impact for our taxes only in the event we do not have sufficient cash to pay them. As a result, we accrue state income taxes in addition to federal income tax.
Accounting for Uncertainty in Income Taxes
We adopted and implemented the authoritative accounting guidance for accounting for uncertainty in income taxes that clarifies the accounting for the uncertainty in income taxes recognized in a company’s financial statements. Our adoption of this guidance did not materially affect our operating results, cash flows or financial position.
Comprehensive Income
Comprehensive income differs from net income due to the equity in other comprehensive income or loss of the Partnership. The Partnership enters into a variety of derivative financial instruments to mitigate its exposure to commodity price and interest rate risk, most of which are qualified cash flow hedges under the applicable authoritative accounting guidance for derivative activities. As such, changes in the fair market value of the Partnership’s derivative financial instruments produce fluctuations in our comprehensive income, which is reflected as equity in other comprehensive income or loss of the Partnership.
F-9
3. SHARE DISTRIBUTIONS
Our authorized capital structure consists of two classes of interests: (1) Listed Shares, which represent limited liability company interests with limited voting rights, and (2) voting shares, which represent limited liability company interests with full voting rights, all of which are held by the General Partner. Prior to the October 17, 2002 initial public offering of our Listed Shares, our issued capitalization consisted of cash contributed by the General Partner for one voting share.
We make share distributions on a quarterly basis at the same time that the Partnership declares and makes cash distributions to the General Partner and the holders of its Class A and B common units. We do not, however, receive distributions of cash on the i-units we own and do not otherwise have any cash flow attributable to our ownership of the i-units. Instead, when the Partnership makes distributions of cash to the General Partner and holders of its Class A and B common units, we receive additional i-units under the terms of the Partnership’s partnership agreement. The amount of the additional i-units we receive is calculated by dividing the amount of the per unit cash distribution paid by the Partnership on each of its Class A and B common units by the average closing price of one of our Listed Shares on the NYSE as determined for a 10-trading day period ending on the trading day immediately prior to the ex-dividend date for our shares multiplied by the number of shares outstanding on the record date. We concurrently distribute additional shares to our shareholders that are equivalent in number to the additional i-units we receive from the Partnership. As a result, the number of our outstanding shares is equal to the number of i-units that we own in the Partnership.
The following table sets forth the details regarding our share distributions, as approved by our board of directors for each period in the years ended December 31, 2010, 2009 and 2008.
| Distribution Date |
Record Date | Distribution Payment Date |
Distribution per Unit of the Partnership |
Average Closing Price of the Listed Shares |
Additional i-units owned |
Listed Shares distributed to Public |
Shares distributed to General Partner |
|||||||||||||||||||||
| (in dollars, except unit amounts) | ||||||||||||||||||||||||||||
| 2010 |
||||||||||||||||||||||||||||
| October 27 |
November 4 | November 12 | $ | 1.0275 | $ | 58.73 | 303,352 | 251,108 | 52,244 | |||||||||||||||||||
| July 23 |
August 5 | August 13 | $ | 1.0275 | $ | 55.57 | 314,768 | 260,558 | 54,210 | |||||||||||||||||||
| April 28 |
May 7 | May 14 | $ | 1.0025 | $ | 51.57 | 324,614 | 268,708 | 55,906 | |||||||||||||||||||
| January 29 |
February 5 | February 12 | $ | 0.9900 | $ | 52.15 | 311,110 | 257,530 | 53,580 | |||||||||||||||||||
| 1,253,844 | 1,037,904 | 215,940 | ||||||||||||||||||||||||||
| 2009 |
||||||||||||||||||||||||||||
| October 29 |
November 5 | November 13 | $ | 0.9900 | $ | 47.28 | 336,128 | 278,239 | 57,889 | |||||||||||||||||||
| July 24 |
August 6 | August 14 | $ | 0.9900 | $ | 42.16 | 368,333 | 304,898 | 63,435 | |||||||||||||||||||
| April 30 |
May 7 | May 15 | $ | 0.9900 | $ | 34.55 | 436,857 | 361,621 | 75,236 | |||||||||||||||||||
| January 30 |
February 5 | February 13 | $ | 0.9900 | $ | 30.17 | 484,494 | 401,053 | 83,441 | |||||||||||||||||||
| 1,625,812 | 1,345,811 | 280,001 | ||||||||||||||||||||||||||
| 2008 |
||||||||||||||||||||||||||||
| October 30 |
November 6 | November 14 | $ | 0.9900 | $ | 34.88 | 407,455 | 337,282 | 70,173 | |||||||||||||||||||
| July 28 |
August 6 | August 14 | $ | 0.9900 | $ | 48.92 | 284,752 | 235,711 | 49,041 | |||||||||||||||||||
| April 28 |
May 7 | May 15 | $ | 0.9500 | $ | 51.38 | 255,460 | 211,464 | 43,996 | |||||||||||||||||||
| January 28 |
February 6 | February 14 | $ | 0.9500 | $ | 51.28 | 251,302 | 208,022 | 43,280 | |||||||||||||||||||
| 1,198,969 | 992,479 | 206,490 | ||||||||||||||||||||||||||
F-10
We had non-cash operating activities in the form of i-units distributed to us by the Partnership and corresponding non-cash financing activities in the form of share distributions to our shareholders in the amounts of $68.3 million, $61.1 million and $54.2 million for the years ended December 31, 2010, 2009 and 2008, respectively.
4. CAPITAL ACCOUNT ADJUSTMENTS ON ISSUANCES OF COMMON UNITS BY THE PARTNERSHIP
The following table presents the issuances of additional Class A common units by the Partnership that resulted in changes in our capital accounts reflected in “Shareholders’ equity” on our statements of financial position. Our capital account is adjusted whenever the Partnership issues Class A common units as set forth in the Partnership agreement.
| Issuance Date |
Number of Class A common units Issued |
Offering Price per Class A common unit |
Net Proceeds to the Partnership(1) |
Ownership Percentage in the Partnership Prior to the Issuance |
Ownership Percentage in the Partnership After the Issuance |
Capital
Account Adjustments(2)(3) |
||||||||||||||||||
| (in millions, except units and per unit amounts) | ||||||||||||||||||||||||
| 2010: |
||||||||||||||||||||||||
| November |
5,980,000 | $ | 60.12 | $ | 354.8 | 14.4 | % | 13.7 | % | $ | 25.5 | |||||||||||||
| 2008: |
||||||||||||||||||||||||
| December |
16,250,000 | $ | 30.76 | $ | 509.8 | 14.7 | % | 12.7 | % | $ | (19.7 | ) | ||||||||||||
| March |
4,600,000 | $ | 49.00 | 221.8 | 14.8 | % | 14.1 | % | 6.4 | |||||||||||||||
| 2008 Totals |
20,850,000 | $ | 731.6 | $ | (13.3 | ) | ||||||||||||||||||
| (1) | Net of underwriters’ fees and discounts, commissions and issuance expenses and including contributions from the General Partner to maintain its two percent general partner interest in the Partnership. |
| (2) | Before the effect of income taxes. |
| (3) | Prior to our January 1, 2009 adoption of the authoritative accounting guidance for noncontrolling interests, we recognized changes recorded by the Partnership to our book capital accounts resulting from Partnership issuances as a gain or loss in our statements of income. See discussion at Note 2—Summary of Significant Accounting Policies. |
Equity Distribution Agreement
In June 2010, the Partnership entered into an Equity Distribution Agreement, or EDA, for the issue and sale from time to time of its Class A common units up to an aggregate amount of $150.0 million. The following table presents the net proceeds from the Partnership’s Class A common unit issuances, resulting from the EDA, during the year ended December 31, 2010:
| Issuance Dates |
Number of Class A common units Issued |
Average Offering Price per Class A common unit |
Net Proceeds to the Partnership(1) |
Ownership Percentage in the Partnership Prior to the Issuance |
Ownership Percentage in the Partnership After the Issuance |
Capital Account Adjustments |
||||||||||||||||||
| (in millions, except units and per unit amounts) | ||||||||||||||||||||||||
| April 1 to June 30, 2010 |
287,345 | $ | 52.52 | $ | 15.1 | 14.1 | % | 14.1 | % | $ | 0.7 | |||||||||||||
| July 1 to September 30, 2010 |
686,741 | $ | 54.21 | 37.0 | 14.3 | % | 14.2 | % | 1.8 | |||||||||||||||
| October 1 to December 31, 2010(2) |
144,615 | $ | 55.70 | 7.8 | 14.2 | % | 14.2 | % | 0.5 | |||||||||||||||
| 2010 Totals |
1,118,701 | $ | 59.9 | $ | 3.0 | |||||||||||||||||||
| (1) | Net of commissions and issuance costs and including contributions from the General Partner to maintain its two percent general partner interest in the Partnership. |
| (2) | Issuances under the EDA during the three-month period ended December 31, 2010 occurred from October 1 to October 5, 2010. |
F-11
During the year ended December 31, 2010, we recorded a total of $28.5 million in capital account adjustments in relation to the Partnership’s Class A common unit issuances, detailed above. The net of tax effect of these capital account adjustments on our December 31, 2010 statement of shareholders’ equity was $17.9 million.
5. RELATED PARTY TRANSACTIONS
At the time of our initial public offering, we became a limited partner in the Partnership and, pursuant to a delegation of control agreement among us, the General Partner and the Partnership, assumed the management of the Partnership’s business and affairs. Pursuant to this agreement, we have assumed substantially all of the General Partner’s power and authority to manage the business and affairs of the Partnership and its subsidiaries. The delegation of control agreement provides that we will not amend or propose to amend the Partnership’s partnership agreement, allow a merger or consolidation involving the Partnership, allow a sale or exchange of all or substantially all of the assets of the Partnership or dissolve or liquidate the Partnership without the approval of the General Partner.
The General Partner remains responsible to the Partnership for actions taken or omitted by us while serving as the delegate of the General Partner as if the General Partner had itself taken or omitted to take such actions. The General Partner owns all of our voting shares. The General Partner has agreed not to voluntarily withdraw as general partner of the Partnership and has agreed not to transfer its interest as general partner of the Partnership unless the transferee agrees in writing to be bound by the terms and conditions of the delegation of control agreement that apply to the General Partner.
The Partnership recognizes the delegation of rights and powers to us and indemnifies and protects us and our officers and directors to the same extent as it does with respect to the General Partner. In addition, the Partnership reimburses our expenses to the same extent as it does with respect to the General Partner as general partner. The Partnership also reimburses us for any Texas franchise taxes and any other similar capital-based foreign, state and local taxes not otherwise paid or reimbursed by Enbridge pursuant to the tax indemnification agreement.
The General Partner, we and Enbridge, through its affiliates, provide the Partnership with managerial, administrative, operational and director services pursuant to service agreements among all of us. Pursuant to these service agreements, the Partnership reimburses us, the General Partner and affiliates of Enbridge for the costs of these managerial, administrative, operational and director services. Through an operational services agreement among Enbridge, affiliates of Enbridge and the Partnership, the Partnership is charged for the services of our executive management resident in Canada. Through a general and administrative services agreement among the Partnership, the General Partner, us and Enbridge Employee Services, Inc., a subsidiary of the General Partner, which we refer to as EES, the Partnership is charged for the services of our executive management resident in the United States. In addition, other employees of EES are assigned to work for the General Partner, the Partnership and us, and employer expenses for these employees are charged by EES to each of us, as appropriate. For the periods ended December 31, 2010, 2009 and 2008, all costs from EES incurred by us were charged to the Partnership pursuant to these agreements.
F-12
6. INCOME TAXES
Our long-term deferred income tax liability of $80.8 million and $87.1 million at December 31, 2010 and 2009, respectively, results from the deferred income tax expense associated with recording our equity in earnings of the Partnership and our share of the other comprehensive income of the Partnership. The terms of the i-units provide that the units owned by us will not be allocated income, gain, loss or deductions of the Partnership until such time that we dispose of our investment in the Partnership, thus resulting in the realization of the long-term deferred income tax liability. As of December 31, 2010, we have no liability reported for unrecognized tax benefits.
The effective income tax rates we used in computing the income tax provisions for the years ended December 31, 2010, 2009, and 2008 are presented in the following table:
| 2010 | 2009 | 2008 | ||||||||||
| Federal statutory income tax rate |
35.0 | % | 35.0 | % | 35.0 | % | ||||||
| State income tax rate |
2.7 | % | 2.8 | % | 2.1 | % | ||||||
| Effective income tax rate |
37.7 | % | 37.8 | % | 37.1 | % | ||||||
Our tax years are generally open to examination by the Internal Revenue Service and state revenue authorities for calendar years ended December 2007, 2008 and 2009.
7. SUMMARIZED FINANCIAL INFORMATION FOR THE PARTNERSHIP
The Partnership is a publicly-traded Delaware limited partnership that owns and operates crude oil and liquid petroleum transportation and storage assets, and natural gas gathering, treating, processing, transportation and marketing assets in the United States of America. The following table provides summarized financial information of the Partnership:
| As of and for the year ended December 31, | ||||||||||||
| 2010 | 2009 | 2008 | ||||||||||
| (in millions) | ||||||||||||
| Operating revenues |
$ | 7,736.1 | $ | 5,731.8 | $ | 9,898.7 | ||||||
| Operating expenses |
7,608.8 | 5,115.2 | 9,318.1 | |||||||||
| Operating income |
$ | 127.3 | $ | 616.6 | $ | 580.6 | ||||||
| Income (loss) from continuing operations |
$ | (137.9 | ) | $ | 392.9 | $ | 394.9 | |||||
| Income (loss) from discontinued operations |
— | (64.9 | ) | 8.3 | ||||||||
| Net income (loss) |
(137.9 | ) | 328.0 | 403.2 | ||||||||
| Less: Net income attributable to noncontrolling interest |
60.6 | 11.4 | — | |||||||||
| Net income (loss) attributable to Enbridge Energy Partners, L.P. |
$ | (198.5 | ) | $ | 316.6 | $ | 403.2 | |||||
| Current assets |
$ | 1,219.9 | $ | 869.9 | $ | 1,124.5 | ||||||
| Long-term assets |
$ | 9,221.1 | $ | 8,118.4 | $ | 7,176.4 | ||||||
| Current liabilities |
$ | 1,317.9 | $ | 1,065.0 | $ | 1,136.2 | ||||||
| Long-term liabilities |
$ | 5,237.6 | $ | 3,853.4 | $ | 3,437.8 | ||||||
| Noncontrolling interest |
$ | 465.4 | $ | 341.1 | $ | — | ||||||
| Partners’ capital |
$ | 3,885.5 | $ | 4,069.9 | $ | 3,726.9 | ||||||
F-13
8. EQUITY INCOME FROM THE PARTNERSHIP
Our operating results, cash flows and financial position are dependent on the results of operations, cash flows and financial position of the Partnership. As a result, items that affect the operating results, cash flows and financial position of the Partnership will affect the amounts we report in our financial statements in proportion to our percentage ownership of the Partnership.
In July and September 2010, the Partnership sustained losses from two crude oil releases that adversely affected its operating results and consequently the equity income we derive from the Partnership’s operations. As a result of the crude oil releases, we recognized $52.4 million, after taxes, of equity losses on our statement of operating income for the year ended December 31, 2010.
For the year ended December 31, 2009, we have included approximately $3.0 million in equity income from our investment in the Partnership for our share of earnings recognized by the Partnership in the year ended December 31, 2009, for previously unrecognized revenue of prior periods. We recognized the additional equity income following our determination that the previously unrecognized amounts were not material to the current or any prior period. The effect of recognizing the additional equity income on our operating results for the year ended December 31, 2009 is approximately $1.9 million, after taxes. The additional revenue recognized by the Partnership was the result of billing and volumetric errors associated with application of a joint tariff agreement among the Partnership and the Mustang Pipeline, LLC that were identified during 2010.
9. SUBSEQUENT EVENTS
Share Split
On February 18, 2011, the board of directors of Enbridge Management approved a split of the Listed and voting shares of Enbridge Management to be effected by a distribution on April 21, 2011 of one Listed share for each Listed share outstanding and one voting share for each voting share outstanding to shareholders of record on April 7, 2011. The General Partner is the holder of all of our voting shares and approximately 3,087,629 of our Listed shares.
Share Distribution
On January 28, 2011, our board of directors declared a share distribution payable on February 14, 2011, to shareholders of record as of February 4, 2011 based on the $1.0275 per limited partner unit distribution declared by the Partnership. We received 285,459 i-units from the Partnership, which is computed by dividing $1.0275, the cash amount distributed per limited partner unit, by the average closing price of one of our Listed Shares on the NYSE as determined for the 10-trading day period ending on the trading day immediately prior to the ex-dividend date for our shares multiplied by the number of shares outstanding prior to the distribution. We distributed 236,297 additional Listed Shares to our listed shareholders and additional shares to the General Partner in respect of these additional i-units.
10. SUPPLEMENTAL SELECTED QUARTERLY FINANCIAL INFORMATION (UNAUDITED)
| First(1) | Second | Third | Fourth(1)(2) | Total | ||||||||||||||||
| (dollars in millions, except per share amounts) | ||||||||||||||||||||
| 2010 Quarters |
||||||||||||||||||||
| Net income (loss) |
$ | 8.9 | $ | 10.9 | $ | (38.0 | ) | $ | (5.5 | ) | $ | (23.7 | ) | |||||||
| Net income (loss) per share, basic and diluted |
$ | 0.54 | $ | 0.64 | $ | (2.21 | ) | $ | (0.31 | ) | $ | (1.39 | ) | |||||||
| 2009 Quarters |
||||||||||||||||||||
| Net income |
$ | 4.7 | $ | 8.6 | $ | 3.3 | $ | 5.2 | $ | 21.8 | ||||||||||
| Net income per share, basic and diluted |
$ | 0.31 | $ | 0.55 | $ | 0.21 | $ | 0.32 | $ | 1.39 | ||||||||||
| (1) | In the first and fourth quarter of 2009, we recognized $1.1 million and $0.8 million, respectively, related to prior year income recognized by the Partnership from the Mustang Pipeline System. Both amounts are net of taxes. |
| (2) | In the fourth quarter of 2010, we recognized $10.2 million of equity losses, net of taxes, related to additional costs recognized by the Partnership related to its crude oil release in July 2010. |
F-14